Municipal Autonomy and the new opinion of the Attorney General's Office on Municipal Lotteries: a necessary reflection.
The recent opinion issued by the Attorney General's Office (PGR) regarding municipal autonomy in the operation of lottery services raises fundamental questions that deserve in-depth discussion. The PGR suggests a restriction on the municipalities' competence, which, at first glance, may seem like a control measure, but in reality represents a setback in the autonomy guaranteed by the Federal Constitution.
It is important to highlight that this new opinion directly contradicts a previous decision by the Attorney General's Office itself, which had already expressed its support for the creation of a public lottery service in the municipality of Guarulhos, which is a defendant in ADPF 1212. This change of opinion reveals an inconsistency that cannot be ignored, especially on a topic so sensitive to municipal autonomy.
The autonomy of municipalities is a fundamental principle of our democratic rule of law, enshrined in Article 1 of the Constitution. This autonomy allows municipalities to legislate on matters of local interest and regulate their respective public services, such as the creation and operation of lotteries. The new opinion from the Attorney General's Office ignores this reality, proposing a centralization that disregards the particularities and needs of each municipality.
The absence of exclusive rights for the Union to operate consortia and raffles, including bingo and lotteries, as discussed and decided in ADPFs 492 and 493, should be interpreted broadly. The Attorney General's criticism of the "unregulated proliferation" of lotteries is a simplistic view that does not take into account the socioeconomic and cultural differences between the federated entities. Each locality has its specificities, and the capacity to legislate on its own issues is a reflection of its autonomy and responsibility.
Furthermore, the operation of municipal lotteries is not just a matter of revenue collection, but also an important instrument for social transformation. The resources generated can be used in essential areas such as social assistance, health, education, etc. Ignoring this potential is to fail to recognize the historical and vital role that lotteries can play in local development.
The Attorney General's Office's change of opinion on the same issue, disregarding Articles 30 and 19 of the Constitution, which address municipal autonomy and the prohibition of unequal treatment among federated entities, is concerning. Article 30, sections II and V, guarantees municipalities the competence to operate public services that meet their needs, while Article 19, section III, ensures that the Union cannot establish unequal treatment among federated entities. This proposed centralization violates the principle of federative equality and underestimates the capacity of municipalities to self-organize.
The Supreme Federal Court, in analyzing ADPF 1212, should reaffirm the importance of municipal autonomy as an essential element of Brazilian federalism. The decision should not fall into the trap of state paternalism, which underestimates the capacity of municipalities to serve their populations.
Furthermore, the matter is sub judice, and administrative restrictions, in my view, represent an usurpation of the Supreme Court's jurisdiction. Until the ADPF (Arguição de Descumprimento de Preceito Fundamental - Claim of Non-Compliance with a Fundamental Precept) is judged, municipal laws must be complied with and respected, as they have not been declared unconstitutional.
In a continental country like Brazil, the diversity of municipal legislation should be seen as an asset, not a problem. Dialogue and cooperation between different levels of government are fundamental to building a regulatory framework that respects municipal autonomy while simultaneously complying with federal guidelines.
In short, municipal autonomy in the operation of public lottery services is a right that must be protected and promoted. The Supreme Federal Court has the opportunity to reaffirm this fundamental principle, ensuring that municipalities continue to have the capacity to legislate and regulate activities that meet their specific needs. The protection of municipal autonomy is not merely a legal matter, but a vital condition for democracy and local development.
(*) Paulo Horn is a lawyer, president of the Special Commission on Lottery Law of the OAB/RJ and Legal Director of the National Association of Municipal and State Lotteries (ANALOME)
