El régimen de transición pensional de los servidores públicos, un debate constitucional desde el derecho viviente como una manifestación de la teoría posmodernista del sistema de fuentes y el valor del precedente

Abstract

The judicial precedent in Colombia is framed like law source, which purpose is to warrant equality, legal security, legitimate trust, through the univocal normative orientation of the judicial apparatus which manages justice and the which one that is an interpreter of the rule with strict subjection to the law, and when the high courts give scope to the political constitution of 1991, they must give application to the coherence of the Colombian legal system too, it means to guarantee the principle of unity in their interpretations of the law.

Then, the judicial precedent in the administrative law in pension matters, it was not enough to protect people who being beneficiaries of the transitional regime since April 1st of 1994, the date of entry into validity of law 100 of 1994, they acquired better conditions and the court warned that the interpretation done by the contentious judge turned out to be unconstitutional and it affected not only the plexus of principles, but also rules and rights into the constitutional rank.

The liquidation of pensions to the public serves had reason to be in different and varied normative seats, it entailed that the legislative uttered the 33 law of 1995, which settled the pensions taking as a reference the last year of service provision, situation that was modified by the legislative who send out the 100 law of 1993, creating a general pensions system, which bring the respect of some rights, like the age, service time and amount, but also the lack of clarity in the way, like happened with the base income of liquidation (IBL in spanish) to the respective pensions liquidation of public servers.

The judge created a rule at the moment of interpret it about the base income of liquidation considering the last ten years and which contributions have been made, the situation was peaceful by the closing organs adducing that the pensions must be liquidated with the last year of service and the inclusion of all the salary factors accrued by the pensioner, but those criterions unity ended the may, 7th of 2013, date which the constitutional court C-258 proffered the judgement, by means of that ‘’IBL’’ was determinate like non subject of transition and it have to abide by the new pensions general system, the position was not adopted by the closing body of the contentious administrative jurisdiction until august, 28th of 2018, this setting generated a new legal insecurity stage and a lack of certainty about the judicial operator should follow the interpretative criteria in cases of public servants under the transitional regime.

Nevertheless, through the study of living law, the constitutional court could check the interpretation that judicial operators made about regulatory assumptions found in repealed regulations but it still has legal effects. This form of constitutionality study shows how there is a mutation in the source system of the Colombian legal ordering and it represents the assimilation of postmodernist theory of law thanks to the binding force of preceding.

It’s necessary overtake an investigative analysis about the present jurisprudence essence and its effect that it has on the legal security and the certainty of law, however criteria interpretative unity of just one rule should be guaranteed by closing courts; and in this order of ideas, despite drawbacks that the disparity of criteria generates in the confidence of the judicial operator and the legal world, it is evident a constitutional mutation of the system sources, thanks to the living law control and how this scenario translates into a tacit acceptance of legal postmodernism.

In order to solve the problem of the present investigation, it is first proposed to determinate which are the normative budgets established by the legislator regarding the transition regime for public servants and which rules are regulating its dogmatic and general part, for which It will be previously required to make a normative historical review that contains a clear and successful account in which the reader identifies the abstract practical unit of the legislator's activity. Later, designate specifically the conceptualization of the evolution of the existing paradigms between the Council of State and the Constitutional Court against IBL of the pension system of public servers until reach a criteria unification to tackle a study of the effects over time on precedent in administrative law and the legal security consequences that this process of change generated into the legal system.

About the exposed information, in the first part of the investigation we will find a first section dedicated to the dogmatic analysis of the norms that regulate the transition regime for public servers, in the second part, the specific subject will be addressed in relation to the points of divergence and convergence of the jurisprudence on pension matters of public servers with the effects that this generated in the theory of legal certainty and the certainty of law. And in the third part, an analysis of living law will be presented and how it represents a clear and evident manifestation of the mutation of the Colombian system of sources, due to the assimilation in Colombia of the postmodernist theory of law.

The achievement of the objectives will be developed in accordance with the jurisprudential and doctrinal analysis through which it is intended to point out the most relevant aspects regarding the application of the previous jurisprudential in pension matters of the public servers, beneficiaries of the transition regime of Law 100 of 1993, since in turn, unraveling whether the superior article 230 tacitly mutated, in view of the obligation of the preceding and the study of the constitutionality of living law, which shows the acceptance and incorporation of legal postmodernism into the Colombian legal system.