Elección del Personero municipal en el marco de la Ley 1551 de 2012. "Un nuevo modelo de democracia"

Abstract

Until the entry into force of Law 1551 of 2012, the municipal representative was elected by the Municipal Councils, freely and in exercise of the faculty granted by the electors, fully materializing representative democracy. On the occasion of the issuance of Law 1551 of 2012, the legislator decided that the representative election was conducted by contest of merits, changing the conception that until that moment was thought as an application of the representative democracy in this election, given this, the Constitutional Court manifested the conformity of law 1551 with the constitution and proposed the existence and concretion of other types of democracy as applicable to this new form of election of municipal representative. The present thesis objective is to determinate the model of democracy that is established in the election of the municipal representative by merit contest in order to respond to the process endorsed by the Constitutional Court in relation to this procedure. Therefore, based on the description and analysis of the constitutional norm and under the systemic interpretation of the law and jurisprudence of the Constitutional Court, and analytic work was performed, since in this way the critical-logic observation of the democratic institutions that irrigate the new municipal representative election system prevails. For the Constitutional Court, the democracy model in the municipal representative election by merit contest is a practice of the participatory, deliberative and substantial democracy; however, it is considered that this election by meritocracy introduces a new type of democracy ; open and in permanent construction, since it is based on two dynamic pillars, which are the surveillance of public goods of material and immaterial nature as well as human rights and good governance. It allows the citizenship surveillance and that the most qualified can access the public administration, in positions where more suitability is needed. Hence, unlike what was considered in the ruling of the Constitutional Court, this democracy corresponds to a more open type and in continuous construction, that is not subject to the related categories in the Court, but it is evidenced as a phenomenon not observed before; that the democracy is a continuous and dynamic construction; which is based on process that are equally continuous and dynamic. Thus, if the new type of democracy is based on the principles of material equality and concrete freedom, it is understood that these are dynamic and are bound to the proper functioning of the State and the protection and birth of human rights, both existing and those that are about to come.