Aproximación teórica al criterio interpretativo de la corte constitucional respecto del alcance del artículo 36 de la Ley 100 de 1993

Abstract

In the present work, a study is made of the interpretative conflict that the Colombian high courts have historically maintained since they made their first pronouncements, regarding the scope of the transition regime provided for in article 36 of Law 100 of 1993, and that since its entry in force more than two decades ago, it is still in force today, with respect to whether the legislative transition protected its beneficiaries so that the previous rules were applied to them, for the recognition and settlement of their pensions, regarding age, weeks of contribution, amount, and Base Income of liquidation "IBL". The latter has become a matter of discord or train crash between the high courts, since from the beginning the State Council established that it was integrated within the concept "amount" of the second paragraph of the referenced article 36, and for its The Supreme Court of Justice, who has always maintained the contrary thesis, argues that the “IBL” to calculate the amount of the pensions of the beneficiaries of the transitional regime was regulated in the third paragraph of the same codification. The issue becomes even more conflictive when the Constitutional Court unifies the jurisprudence that it had historically maintained in all its chambers and that shared the thesis of the Council of State regarding saying that the “IBL” was immersed in the transitional regime by being part of the concept "amount", to change its position and say that it was not part of the transitional regime, thus giving reason to the Supreme Court of Justice.