martes, 27 de agosto de 2019

THE POLITICAL REPRESENTATION




THE POLITICAL REPRESENTATION

“INSIDE POLITICAL THEORY: EDMUND BURKE”





BY : Omar Colmenares Trujillo. 



When we talk about political representation Burke is the great reference, because perhaps the depth of his thinking in the light of reason and justice led him in addition to his economic difficulties to the English parliament in 1766.



His trips to Paris and the knowledge of several French encyclopedists further contributed to his conservative ideas, Burke pretended to always be recognized as the most moderate of the liberals.


Among his great works we can mention A Vindication of Natural Society: A View of the Miseries and Evils Arising to Mankind (1756), A Philosophical Inquiry into the Origin of Our Ideas of the Sublime and Beautiful (1757), Reflections on the Revolution in France (1790).



But in particular "REFLECTIONS ON THE FRENCH REVOLUTION" Where he rejects revolutionary practices because I always consider that the legal principles of that revolution were too abstract and inconsiderate with individuality and in this order established his "epistemology of politics" as a model of empiricism politician.



However, political theory is sometimes very severe in its judgments against Burke's political thought, and this is explained by the defense of the tradition branded as reactionary, but I can say in my opinion that he was a true liberal, progressive, loved freedom and seconded many ideas of the liberal thought of the time, in


Matter of religion and economy, and I really like a particular phrase that distinguished it is "orderly freedom", that is to say, no confusion of freedom with debauchery.



Now, as far as the economy is concerned, it seems to me that he supported precisely that economic freedom and private property by obtaining the appreciation and recognition of Adam Smith as well as the famous Lord Acton.


I want us to get into the subject, first to argue that representing means to present again, to present something or someone who is not present from this perspective. Political science develops the theory of representation in three opposite directions, depending on whether A) is associated with idea of ​​mandate or delegation B) with the idea of ​​representativeness that is, of similarity or similarity, C) with the idea of ​​responsibility; Now I want us to go into each one of these in particular.


Representativeness tells us that someone is representative of saying that this personifies some essential characteristics of the group, class or profession from which it comes or belongs and finally we understand that the representative government is a responsible government that is where I am going to place to make a political analysis that I have called The crisis of political representation.



And from which I will take Burke as a great exponent of this matter, curiously conservative, monarchical, and aristocratic.


The Historical development of the political theory of representativeness should observe the distance of this modern representation from the French to the medieval revolution, that contraposition to the imperative mandate that repudiates the constitution of 1791 where the great difference between the people and the people is also exposed. nation  because if it is the people who are declared sovereign, who have the voice, they cannot speak except through their representatives said Sieyes in 1789.




But something different is to speak of the representation of the nation and not of the people, because it will no longer designate only the relationship between the deputy and those who have delegated to it, but to the nation as such, so Bordeau also stated when I affirm the representation as it was understood in 1789 does not call into question more than a single will. The nation represented, that is why in the British parliament they are called deputies, because when they ceased to be so, they ceased to be presidents.



But as I admired Burke in his famous 1779 speech to his constituents in Bristol.


But it was necessary the glorious English revolution, the declaration of independence of the United States of America and the French revolution so that the representation began to be connected to the government and despite the growth of the representative bodies, it will never have to govern the only thing that he is required is sufficient independence to work in favor of the state, because precisely and occupied in the body like the parliament this became the representative of the nation and although it implies a legal fiction that ultimately represents an obstacle to the general will.



Consequently, parliaments (congress, chamber of deputies) must move under balance and moderation, because if they go to the extreme of defending the interests of the governed they would then represent a nuisance for the government, and 7 if they go to the side of defending Government interests would no longer fulfill their representative function of the people or nation.


Now I want to stop at the virtual representation theorized by Burke, which is ultimately the representation without choice and for this we must pay attention to the concept of existential or sociological representation where the fundamental thing is not the method of selection but the identity and the coincidence of interests.



But the concern lies in the need for the governed to feel represented, to feel that they have a little power in front of the state and this is due to the need for choice, because perhaps their representatives would be forced to their denominates and not to the nation , so it is clear that political representation is protected by an electoral safeguard.


In Friedrich's words, the representation rests on a Think So, that is, under the term of the ideas, a person represents another, so this representation is not in itself an idea but also a duty, which necessarily requires that the election acquires a meaning and an intention to represent in any electoral system or method and as this leads us to the virtual representation from which elective representation emerges because we all know that elections are one thing and representation is another.




The virtual representation said Burke in a letter to Sir Hercules Langrishe - it is one in which there is a communion of interests and a sympathy of feelings and desires, among those who act in the name of any meaning of the people, and the people in the name of those who act, despite the fact that the fiduciaries have not been chosen in fact for him. This representation is in many cases, I think, even better than the effective one. It has a large part of its advantages and eliminates many of its disadvantages. However, this type of virtual representation cannot have a long and secure existence if it does not have the effective representation as a substrate. The deputy must have a certain relationship with the electorate ”BURKE, The Works P, 557, speech of May 8, 1780 in the commons on the frequency of elections.


Then it is clear that political representation is the theory of responsible representation, here the mere requirement of similarity is not necessary, but that of ensuring the obligation to respond, and it is only through the elections that one can ultimately determine so be it.


What we have Today more than an Imperative mandate, (Burke and Mill) is an empty and meaningless formula of political representation, where the people place their trust in a representative they don't know.



Only the elections can guarantee the people that this political representation is truly responsible with their electorate



So today we have more than a representative mandate, more than an “imperative mandate”, and that is that political leaders do not ascend to represent the interests of their community (electors), but instead to satisfy the lowest wishes of contractors owners of the regional public administrations, who financed him, who contributed financially to gain the position, which Burke would say in the face of such a demon in political representation.


So this approach, seen from political theory, should lead us to observe political responsibility as an imminent feature of political representation; more than the figure of a trustor and a trustee, the latter who must guarantee and fulfill the mandate for which he was elected.


To talk about representativity we will stop again to the political approaches of Edmund Burke, and that is that we feel represented by who belongs to our extraction matrix because we presume that that person personifies us.


Then the conflict stems from whether to find the person who substitutes us personifying us (etymologically to put on the mask) and of course that the representation has been born m historically within the synonym of belonging.



Thus stated, it is clear that it is plausible that a person feels better represented when the representative is an alter ego, someone “like him” someone who acts like the actuarial because he is (existential or professional) but that said, another difficulty arises and it is that of a parliament or representative body that is an almost mirror of the similarities of extraction but that is nevertheless deaf to the demands of society that precisely reflects, as it happens in Colombia, hence the supremacy of political responsibility lies (Respond responsibly) about simple similarity.


The idea of ​​responsibility has God faces a) personal responsibility towards someone, that is, the obligation of the representative to respond to the owner of the relationship; b) the functional or technical responsibility to reach an adequate level in terms of capacity and efficiency. The first as we can see is a dependent responsibility and the second therefore independent, that the representative in the first term acts as another and that in the second case a responsible responsibility is intended, their behavior is trusted.


In political terms, it can be inferred that the term responsible government has two different expectations: that a government is receptive, or sensitive (responsive) and must respond for what it does b) a government behaves responsibly acting efficiently and competently


However, a responsible government can also be a highly irresponsible government. The more receptive a government becomes, the less it is in a position to be responsible.


Within this study of representativeness and more in the case of the political theory of Edmund Burke, noted English thinker, it is hardly obvious that we refer to the representative system of the United Kingdom, which is based on a uninominal electoral method that attributes a limited margin of election to the voter, but that favors a bipartisan system.



On the other hand, in systems such as that of France, it is based on a system that leaves a wide margin for the elector, and favors multipartism, this to say that the electoral system of the United Kingdom sacrifices the representativeness of parliament to the demand of a responsible government, while the French sacrifice the efficiency of a government to the representativeness of the parliament.


In countries with uninominal constituencies, they vote to create a stable and responsible government, and only in a subordinate way a representative parliament. In countries with a proportional system, they vote to create a representative parliament and only a subordinate government. Thus, since proportional elections tend to produce free majorities (not imposed majorities) in parliament, they would result not only changeable governments, but also with little empowered responsibility.


In this order of ideas and as established by political science it could be said that in the majority systems the representation is less faithful, but reaches higher, to the government; while in proportional systems the representation is more faithful, but it has a shorter projection, it only reaches the assembly. Thus, the representation becomes representative, leaving aside the connotation of responsibility.


In the majority systems the seats do not correspond to the votes, but the imperfection of the representativeness is compensated by everything that is gained in clarity and immediacy of responsibility: throughout the legislature the responsibility is of the governing party. On the contrary, in the proportional systems so many votes correspond to so many seats in the parliament, but this division of the assembly attenuates the responsibility of the government.


But how can we reconcile an efficient government with a representative representation? Constitutional engineering would mean, as Bordeau argued, (traité de science politique) choosing between independent responsibility and dependent responsibility to a greater extent than between governed and governing democracy.



Thus we could argue that a representative system cannot exist without periodic elections capable of holding the rulers accountable to the ruled, but then receptivity prevails, that is, a dependent responsibility.

A political system is described as representative at the moment when honest electoral practices ensure a reasonable degree of response of the rulers to the governed. This does not imply the universality of suffrage, but it states that no representative system can be based solely on virtual representation.



But just as some political science scholars raise three questions, the first one is who is represented? And it is that as happens in Colombia the more numerous the electorate becomes, the more we lose sight of who is represented; It leads us well to the individual who votes and his representative intention and that his electoral behavior wants to convey. It can be maintained that the act of voting expresses: a) what the voter has to say (or thinks); or b) what the voter is (existentially); or C) what the voter wants. In the first representation we could say that the representation represents opinions, in the second the representation means an appearance of social class or trade; and in the voluntarist interpretation an individual can be represented even if it is silent.


And as a second question, what does it represent? Here it seems convenient to refer to the so-called territorial constituencies within the representative system, the localities, as in our country with the House of Representatives, although it is still a matter of research within the social sciences, the truth is that it is indisputable that the representation territorial does not satisfy and becomes a real problem of functional representation.

But within this area, in the face of the party process there are two phases, one that is the relationship between voters and parties and the other one is the relationship between representatives and parties, and here there is a fairly studied phenomenon and it is the co-optation of the apparatus party, which is what really constitutes the effective election, because the voters choose the party, but the elect are elected by the party, as happens in the democratic center, but autocratic inside, where the citizens say colloquially "He who says Uribe ”and it is to that chosen by the party or Uribe that the electorate fixes its support as a political party.

Then, as Duverger said at the time, the modern representative is entrusted with a double mandate from one of his constituents and another from the party, but ultimately the mandate of the party is the one that prevails over the electoral mandate.

We can affirm then that the representation with time has lost immediacy, and that it cannot be understood simply as a mere relationship between voters and representative, but rather, voters, parties and representative and in political praxis it is the parties that ended up replacing the electorate, but of all research in this area, the problem remains that of political responsibility.

In my opinion the English representative system is in practice the most democratic, despite being within a constitutional monarchy, that is why Edmund Burke is constituted as one of those who contributed to his parliamentary establishment, and that is how the scholars affirm the English people love to be governed, and the order of priorities could be A) Coherence, B) To give account to the parliament C) Receptivity towards public opinion and its demands.





lunes, 26 de agosto de 2019

IBL PROMEDIO DE LOS ULTIMOS 10 AÑOS DE COTIZACION REGIMEN DE TRANSICION PENSIONAL: REITERA LA CORTE CONSTITUCIONAL.





IBL PROMEDIO DE LOS ULTIMOS 10 AÑOS DE COTIZACION REGIMEN DE TRANSICION PENSIONAL: REITERA LA CORTE CONSTITUCIONAL.






Un fallo reciente de la Corte Constitucional explica que varios fallos del Consejo de Estado que han resuelto procesos de nulidad y restablecimiento del derecho han decidido que para determinar la base de liquidación en el régimen de transición de las pensiones de vejez y jubilación debe tomarse en cuenta la totalidad de factores constitutivos del salario devengado durante el último año de servicio.


 Para la Corte, el máximo tribunal de lo contencioso incurrió en un defecto sustantivo y en una violación directa de la Constitución, por cuanto, de conformidad con la jurisprudencia constitucional, “a los beneficiarios del régimen de transición se les debe aplicar el IBL establecido en el artículo 21 y el inciso 3º del artículo 36 de la Ley 100 de 1993”.


ARTÍCULO 21. INGRESO BASE DE LIQUIDACIÓN. Se entiende por ingreso base para liquidar las pensiones previstas en esta ley, el promedio de los salarios o rentas sobre los cuales ha cotizado el afiliado durante los diez (10) años anteriores al reconocimiento de la pensión, o en todo el tiempo si este fuere inferior para el caso de las pensiones de invalidez o sobrevivencia, actualizados anualmente con base en la variación del índice de precios al consumidor, según certificación que expida el DANE.


ARTÍCULO 36. RÉGIMEN DE TRANSICIÓN. La edad para acceder a la pensión de vejez, continuará en cincuenta y cinco (55) años para las mujeres y sesenta (60) para los hombres, hasta el año 2014*, fecha en la cual la edad se incrementará en dos años, es decir, será de 57 años para las mujeres y 62 para los hombres.

El ingreso base para liquidar la pensión de vejez de las personas referidas en el inciso anterior que les faltare menos de diez (10) años para adquirir el derecho, será el promedio de lo devengado en el tiempo que les hiciere falta para ello, o el cotizado durante todo el tiempo si este fuere superior, actualizado anualmente con base en la variación del Indice de Precios al consumidor, según certificación que expida el DANE.


Cuando el promedio del ingreso base, ajustado por inflación, calculado sobre los ingresos de toda la vida laboral del trabajador, resulte superior al previsto en el inciso anterior, el trabajador podrá optar por este sistema, siempre y cuando haya cotizado 1250 semanas como mínimo.


 Esto quiere decir que corresponde al promedio de los salarios o rentas sobre los cuales ha cotizado el afiliado durante los 10 años anteriores al reconocimiento pensional. (Lea: Explican el término 'devengado' para efectos prestacionales o de determinación del IBL).


“No sólo porque así lo estableció expresamente el legislador en el mencionado artículo 36, sino también porque ello se ajusta a los principios y reglas que sustentan el Sistema General de Pensiones, y brinda coherencia en cuanto al alcance y finalidad del régimen de transición”, agrega la providencia.


Así las cosas, la Corte concluyó que en lo que se refiere a la aplicación del régimen de transición, por la vigencia del principio de supremacía constitucional “e independientemente de lo señalado en fallos de unificación por parte del Consejo de Estado”, en la actualidad debe entenderse que IBL no hace parte de dicho régimen y, por ello, su cómputo debe realizarse con fundamento en lo establecido en las normas citadas de la Ley 100.


“Y es que en lo que atañe al concepto de lo que involucra el monto, a lo largo de los años se ha presentado una profunda discusión, en la que incluso el tratamiento jurisprudencial disímil al interior de las salas de revisión obligó a la Corte adoptar una postura unificada con la Sentencia SU-395 del 2017, distinta de aquella que actualmente sigue exponiéndose por parte del Consejo de Estado”, enfatiza la providencia (M. P. Luis Guillermo Guerrero).




Sentencia T-078/19

Magistrado Sustanciador: 
ANTONIO JOSÉ LIZARAZO OCAMPO

EXCEPCIONES PREVIAS

EXCEPCIONES PREVIAS EN EL CÓDIGO GENERAL DEL PROCESO. Las excepciones previas se caracterizan porque su finalidad primordial ...