Proposed Amendment to the Constitution No. 3 of 2005, authored by Senator Leomar Quitanilha

The Speakers of the Chamber of Deputies and the Federal Senate, pursuant to paragraph 3 of article 60 of the Federal Constitution, promulgate the following Amendment to the Constitution.
constitutional text:
Article 1. Article 24 of the Federal Constitution shall now include the following item XVII:
“Article 22…………………………………………………………………………………………………………………….
XVII – bingo games (NR)”
Article 2. This constitutional amendment shall enter into force on the date of its publication.
Justification
The operation of bingo games should be encouraged, not only because it provides leisure for those who participate, but also because it is an economic activity that generates employment and income.
It should be noted, however, that the laws on bingo games enacted by the States and the Federal District, in accordance with articles 23, II and X, 25, § 1, and 195 of the Constitution, have had their constitutionality questioned, in our view improperly, in the Supreme Federal Court and other bodies of the Judiciary. We can cite several normative instruments.
In the State of Santa Catarina, Law No. 11.348, of January 17, 2000, regulates lottery, games, and electronic entertainment services in that state, authorizing the operation of bingo halls. In the State of Rio de Janeiro, Decree No. 25.723, of November 19, 1999, regulates the operation of bingo lotteries by the Rio de Janeiro State Lottery (LOTERJ) and provides other measures. In the State of Pará, Law No. 6.570, of August 6, 2003, regulates the restructuring of the Pará State Lottery (LOTERPA) and provides other measures. In the State of Piauí, Decree No. 11.106, of August 22, 2003, regulates lottery services. In the State of Espírito Santo, Complementary Law 237 of 2002 governs the Espírito Santo Lottery – LOTERES.
In the State of Rio Grande do Sul, Law No. 10.959, of May 27, 1997. Recently, on August 5, 2004, in the proceedings of Direct Action of Unconstitutionality No. 2.847/DF, in which the Attorney General of the Republic was the plaintiff and the Governor of the Federal District and the Legislative Chamber of the Federal District were the defendants, the Supreme Federal Court decided, by majority vote, with Justice Marco Aurélio dissenting, that the power to legislate on lotteries, including bingo games, is exclusive to the Union – items I and XX of article 22 of the Constitution.
According to item XX of article 22 of the Constitution, the power to legislate on consortium systems and lotteries is exclusive to the Union. Although not expressly provided for, the Supreme Federal Court has understood that lotteries and bingo games are included in the terminology of lotteries. We intend to correct this understanding by amending the current system of distribution of federal powers provided for in the 1988 Constitution. In our view, the proposed amendment does not imply a violation of the entrenched clause of the Constitution that determines that the reforming constituent power must observe the federal form of the State, given that the proposal does not remove any power from the Federated States.
The system of distribution of federal powers foreseen in the 1988 Constitution can be classified, with regard to legislative competence, into four groups, according to the teachings of José Afonso da Silva: a) exclusive (art. 25, § 1 – “the powers not prohibited to the States by this Constitution are reserved to them”); b) private (art. 22 – the Union has exclusive competence to legislate on the matters foreseen in items I to XXIX); c) concurrent (art. 24 – the Union, the States and the Federal District have concurrent competence to legislate on the matters foreseen in items I to XVI); and supplementary (art. 24, § 2 – “the Union's competence to legislate on general rules does not exclude the supplementary competence of the States”).
The purpose of this proposed amendment to the Constitution is to add item XVII to article 24 of the Constitution.
This new clause would stipulate that the Union, the States, and the Federal District have concurrent legislative power over bingo games. In this case, according to... caput According to Article 24 and its paragraphs, the Union would be limited to establishing general rules, without excluding the supplementary competence of the States.
Until a federal law on general rules was enacted, the States would exercise full legislative competence. However, the subsequent enactment of a federal law would suspend the effectiveness of state law to the extent that it contradicted it. Thus, in our view, the legal instruments enacted by the States regarding bingo games would be in perfect accordance with the constitutional text.
Given its social importance, we count on the support of our esteemed colleagues for the approval of this Proposed Amendment to the Constitution.
Meeting Room, February 22, 2005.

Senator Gilberto Miranda – Leomar Quitanilha.