Supercorte y derechos laborales

499
2064
Magistrados de la Corte Suprema de Justicia reunidos con el presidente Duque.

Óscar Dueñas

No es el producto de un exceso verbal, es una propuesta de fondo, la de reformular la justicia, luego hay que estar advertidos. Puede ser la culminación de lo que podría llegar a ser una tiranía judicial.

Hoy, el juez Llerena, justiciero mediático, determina más la política española que Rajoy. Y, el juez Moro, persiguiendo al Partido de los Trabajadores, maneja más la caduca institucionalidad brasileña que el presidente Temer. Ante esos ejemplos, ¿en qué quedan las propuestas y los anhelos democráticos de los ciudadanos?

Eso obliga a examinar con cuidado la dimensión judicial, especialmente cuando el diseño tripartita de Montesquieu da la impresión de que estuviere agotado, puesto que la rama judicial se ha otorgado ella misma nuevos roles y se está admitiendo, sin contradictor fuerte, el activismo judicial norteamericano según el cual   son los jueces quienes crean el derecho a través del dilema de las decisiones judiciales y de la cultura del precedente jurisprudencial.

Este comportamiento, dentro de la estructura del Estado liberal, es indicio de que se está en presencia de una fuerza centrífuga, auspiciada por las élites políticas porque, indudablemente, las favorece. La pregunta es si esto obliga a rediseñar la conformación del Estado contemporáneo, teniendo en cuenta las reales necesidades de las personas y no las particulares teorías de los juzgadores y de quienes detentan el poder real.

La propuesta de una sola Corte Superior en Colombia es una premonición. No es el producto de un exceso verbal, es una propuesta de fondo, luego hay que estar advertidos. Puede ser la culminación de lo que podría llegar a ser una tiranía judicial. Por algo será que en la doctrina contemporánea principia a estudiarse a profundidad el papel de los órganos cierre de las jurisdicciones, llámense Cortes supremas, Tribunales supremos, Cortes constitucionales. Hace dos años la editorial Marcial Pons de Madrid publicó el libro “la misión de los tribunales supremos”, planteándose muchas inquietudes por varios eruditos. Es un tema que está sobre el tapete.

Cortes y derechos ciudadanos

Más que el aspecto orgánico, lo que le interesa a los ciudadanos es que se haga justicia social, que no haya justicia mediática, ni mucho menos sectores corruptos dentro de la judicatura.

¿De qué le sirve a los trabajadores activos y pasivos (pensionados) que haya una o varias Cortes, si ésta o aquellas les recortan sus derechos laborales y prestacionales, como generalmente acontece?

Ante las diferentes interpretaciones que se le están dando a los derechos sociales (unas más restrictivas que otras), debiera existir un diálogo tripartito (gobierno, trabajadores, empleadores) y una humana reflexión entre las diferentes jurisdicciones (constitucional, ordinaria, administrativa) para que exista un marco interpretativo que garantice los derechos y no los restrinja.

En la solución de la crisis de la justicia no puede estar ausente lo que tiene que ver con la dignidad de los trabajadores. Si bien es cierto que la ley tiene un carácter clasista y que la ideología neoliberal ha puesto el derecho al servicio de los intereses del capital financiero, también es cierto que la arremetida contra los trabajadores es muy injusta y que hay jueces, así sean la excepción, que actúan con criterio humanista. Son estos jueces justos quienes van a evitar que el aparato judicial se ubique en una situación denigrante como la que describe Tolstoi en su magnífica novela Resurrección.

Discutir sobre si deben existir una o varias cortes es situar el problema de la justicia en el lugar equivocado.

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