Regresión pensional por exclusión del IBL del régimen de transición de la ley 100 de 1993, en defensa de la sostenibilidad financiera del sistema pensional, desconociéndose los principios constitucionales de favorabilidad, inescindibilidad, interpretación favorable y progesividad.

Abstract

This thesis highlights the pension regression that occurs with the jurisprudential line contained in the tutelage judgments SU-230 of 2015, SU-427 of 2016, SU 395 of 2017, SU-631 of 2017, SU-068 of 2018, SU-140 of 2019 and SU-182 of 2019, issued by the Constitutional Court, which excludes the base income for liquidation (IBL) of the transition regime of Law 100 of 1993 and, therefore, to liquidate it, it orders the application of the provisions in this new legislation (articles 21 and 36). He supports such a position that if the previous legislation were applied to establish the IBL, the finances of the pension system would collapse to the detriment of the general interest, equity, solidarity and would affect the coverage of future generations. On the contrary, the authors maintain that such a position is contrary to the Political Constitution and to the norms of the American Convention on Human Rights, since the fragility of the pension system is a fallacy, since there are many dividends or profits generated by the resources it captures. In addition to the above, we believe that pensions, when built with contributions, their legal design is outlined in such a way that it is profitable, and if this, hypothetically, does not occur, the problem is of legal design and such failure cannot be assumed by the workers. On the other hand, we consider that the members of the system comply with the principles of solidarity, equity and general interest when they make their contributions, therefore we cannot demand more efforts from them, much less reducing pensions. Finally, we believe that such jurisprudential stance is repealing the principles of individual labor law such as favorability, inseparableness and interpretation favorable to the worker in case of doubt, by collectivist and abstract principles not susceptible of demonstration such as solidarity, general interest, equity, among others, that cannot be set against labor rights such as pensions, individually constructed, which protects the elderly and which are social and fundamental in nature.