Considerations regarding the judgment of the Direct Action of Unconstitutionality in Santa Catarina.

ADI 2996/STF – Bingo Lotteries – Santa Catarina
 
1. Effects of the decision
The final decisions on the merits, issued by the Supreme Federal Court in Direct Actions of Unconstitutionality (ADI), produce effects against all and binding effect in relation to the other organs of the judiciary and the direct and indirect public administration, in all spheres (article 102, paragraph 2).

Ex tunc (retroactive) and erga omnes (against all) effect.

It is vested with the authority of res judicata (no appeal is possible and it implies the impossibility of its modification by a subsequent decision of the STF itself). The re-examination of the same matter would only occur, in theory, if there is some new legal development created by the competent legislator (although, the STF is not bound by its own decisions, thus there is no self-binding – the binding effect is in relation to the other organs of the judiciary – not to itself, art. 102 paragraph 2 in conjunction with art. 28 sole paragraph of Law 9868/99).
The Legislative branch is not affected by the binding effect and may enact laws with identical text to the rule that is the subject of the action, against which only a new Direct Action of Unconstitutionality (ADI) would be admissible. As already stated, the Executive branch may not enact another normative act with the same content as the invalid rule (a Provisional Measure, for example).
In theory, it could – after in-depth legal analysis – issue resolutions regulating the lottery, under the terms of Law 3.812/66 (Video Decree 204/67 – which ratified the creation of the SC lottery, obviously updating that text), which the rapporteur of the ADI (Minister Sepúlveda) explicitly stated was not the subject of that action.

Temporal effectiveness of the decision
The decision declaring a norm unconstitutional, as a general rule, has erga omnes effect and retroactive temporal effectiveness (ex tunc).
The exception arises with the advent of Law 9.868/99, article 27:
“…when declaring a law or normative act unconstitutional, and considering reasons of security or exceptional social interest, the Supreme Federal Court, by a 2/3 majority of its members, may restrict the effects of that declaration or decide that it will only be effective from the date of its final judgment or from another moment that may be determined.”

Thus, the Supreme Federal Court (STF) will be able to:
To restrict the effects of the decision;
To decide that it will only be effective from the date of its final judgment or from another date that may be determined.

For the exception in article 27 of Law 9.868/99 to apply, two requirements must be met:
Reasons of legal certainty or exceptional social interest.
A two-thirds majority of the members of the Court.
Thus, by ordinary law, it became permissible, based on legal certainty or exceptional social interest, to restrict the effects of a decision recognizing unconstitutionality, even allowing the use of a normative act deemed unconstitutional (historically, in 1937 the President of the Republic, with ratification by Congress, could withdraw the effects of a judicial decision on the invalidity of an unconstitutional normative act, invoking the need for the well-being of the people or the promotion of the defense of a high national interest – the phenomenon is repeated, starting with Law 9868/99, attributing this decision to the Supreme Federal Court itself).

Nullity – denial of the right to a defense
ABLE was accepted into the action as amicus curiae, based on the petition dated February 24, 2004, with the respective granting order. Oral arguments are possible in ADIs before the STF, pursuant to articles 124, sole paragraph, and 132, paragraph 3, of the STF Rules of Procedure.
The decision to move the hearing from August 17th to August 10th should have been published at least 48 hours in advance (article 112 of the STF Internal Rules) – an obligation of the STF staff – unless the Minister stipulated otherwise – (There is a contrary understanding, to the effect that, once the agenda is published, there is no need for further publication – and this occurred last March, when the ADI was included in agenda 08, without a date for the hearing).
The RISTF (Internal Rules of the Supreme Federal Court) lists the cases in which the judgment does not depend on the agenda (article 83, paragraph 1, items I, II and III) – the judgment of ADI (Direct Action of Unconstitutionality) is not included in these exceptions. Thus, it is understood that it depends on the agenda.
"The publication of the agenda will precede, at least 48 hours, the session in which the process may be called."
The action (ADI 2996) was presented to the full Supreme Court on August 10, 2007, at approximately 10:30 AM. Therefore, unless I am mistaken, there must be proof that the agenda was published in the Official Gazette at least 48 hours before this time – otherwise, there was a blatant denial of the right to a defense, as it prevented the possibility of oral argument – ​​which could have been requested on that day/occasion.
Oral arguments must occur after an express request from the party (or lawyer), which may happen at the time of the hearing (Article 137 of the STF Rules of Procedure) – See Article 131, paragraph 3 of the STF Rules of Procedure.
“The obstacle created by the bureaucratic services of the Justice system, preventing the occurrence of the requested oral argument, constitutes a curtailment of the right to defense, and mistreats the principle of due process of law” (HC 78097/SP – STF Min Carlos Velloso).

Declaratory Relief Proceedings – Legitimacy – the parties – the party is not a party amicus curiae – the State Government and ALESC are involved.
Deadline: 5 days (article 337, paragraph 1 of the RISTF)
Judgment on the Appeals: first plenary session (paragraph 2 of article 337)
Objective: to resolve doubts, contradictions, or omissions that need to be addressed due to ambiguity in the judgment.
Proposed subject for drafting the objection petition: in addition to other possibilities: the effectiveness of the decision (see title above)
Oral arguments are not permitted in the consideration of motions for clarification (article 131, paragraph 2 of the STF Rules of Procedure).
In theory, one can file a motion for clarification with the effect of altering the judgment.

AGU's role in the ADI (Direct Action of Unconstitutionality)
In a direct action of unconstitutionality, the Attorney General of the Union (AGU) acts as a special guardian of the principle of presumption of constitutionality, being responsible for defending the constitutionality of the norm that is the subject of the ADI. This is in accordance with paragraph 3 of article 103 of the 88 Brazilian Constitution:
"When the Supreme Federal Court (STF) considers the unconstitutionality, in theory, of a rule or normative act, it will previously summon the Attorney General's Office (AGU), which will defend the challenged act or text."
Therefore, the Brazilian Constitution of 88 itself confers upon the Attorney General the procedural function of defending the challenged law or act, but it is not within their competence to exercise the supervisory function, as this is the responsibility of the Prosecutor General of the Republic. It acts as... defender of the law.
The Attorney General's Office (AGU), in its statement in ADI 2996, on November 05, 2003 (pages 149 to 156), reinforced the author's (Attorney General's Office) assertion that the text suffered from a defect of unconstitutionality, concluding that "...the state legislation establishing and regulating lotteries does not conform to the guidelines established on the matter in the Constitution of the Republic."
Clearly, the Attorney General's Office reversed its role, advocating against the very rule it had a functional duty to defend, causing an obvious imbalance between the parties.
Note: ADI 1616/PE (Justice Mauricio Correa, Rapporteur) holds the understanding that the Attorney General's Office (AGU) is not obligated to defend a rule whose subject matter has already been previously examined and deemed unconstitutional by the Supreme Federal Court (STF).

Infringement appeals:
It is only applicable when there are at least four dissenting votes – which is not the case here (article 333, sole paragraph of the STF Internal Regulations).
Complaint: We understand that it is only applicable in cases of non-compliance with the decision of the Supreme Federal Court (in the context of an ADI) by a lower court.
This has no practical effect on lottery operators, since what is desired is a way to temporarily render that decision ineffective – unless the decision is understood to take effect only after it becomes final and unappealable or at another fixed time.

Conclusion:
There is still an opportunity to express opinions in ADI 2996, clarifying relevant points, such as the application of Law 3.812/66, which the reporting Justice emphasized was not the subject of the ADI, maintaining its effects in terms of validity and effectiveness, as well as the moment when the decision of unconstitutionality of the Law will take effect (already addressed earlier in this text), which is a matter to be duly resolved, in order to properly guide the government, businesses and their employees.
In conclusion, what truly matters is the necessary understanding by business owners and state governments that Brazil urgently needs a law addressing this matter, transferring the power to legislate on lotteries to the member states.
There is nothing more important than committing to this project.
As long as the industry is defending itself against lawsuits without considering the root cause of these challenges (lack of legislation), there will be no reasonable solution to justify investments in the sector.
Meanwhile, businesses lose out (investments), state governments lose out (taxes), employees lose out (jobs lose), society loses out (social investments lose), the justice system loses out (time loses), public security agencies lose out (open today, closed tomorrow) – we all lose in some way, due to legislative inertia and government inaction that pushes the same activity that in so many other countries is a source of revenue, jobs, and tourism, lots of tourism, especially with Brazilian clients, into clandestinity.

Roberto Brasil Fernandes – Lawyer – Santa Catarina