Germán Sarmiento is a Colombian environmental lawyer who has widened the horizons of citizen defense with regard to environmental and public space rights.
The New Idea
Germán Sarmiento is a pioneer in the field of law that is devoted to defense of the public interest. At the heart of his work is the creation of a new type of professional in Colombia and throughout Latin America: the public interest lawyer. His focus within the broad arena of the public interest has been on the concept of collective rights, where he has originated strategies that assist lawyers to litigate precedent-setting cases and move governance forward on issues that affect entire communities. He is making it possible for the legal system to implement the concept of collective rights through the discovery, creation, and operation of legal instruments that allow any citizen to defend these rights.
Applicable in a number of ways, this approach is especially important in protecting the interests of indigenous communities and for environmental protection, where it is used to enable citizens to seek indemnification for collective environmental damages. Thanks to the work of Germán Sarmiento, and other public interest lawyers like Ashoka Fellows Carmenza Morales and Diana Pombo, judges are not only beginning to grant individual compensations but are halting environmentally unsound practices in the interests of affected communities.
Until a short time ago, Colombian law allowed for the defense of individual rights only. In order to take legal action, a plaintiff was required to demonstrate his or her personal and direct interest. Public assets and the environment fell under the exclusive protection of administrative authorities. Citizens were limited to requesting their protection but lacked the means to enforce authorities to take action. Complaints only occurred when the damage was already done, and compensations were granted only in individual cases.
Practical factors have further hampered Colombian citizens' ability to seek compensation for environmental damages. There has been no coordinated summary of defense mechanisms for collective rights, which are diffused throughout different sections of the law and the legal system. Legal assistance to citizens and communities affected by environmental problems is scarce and expensive. As elsewhere, the Colombian system has difficulty in reaching balanced assessment and dispensing justice.
Germán founded an advocacy organization, FUNDEPUBLICO, through which he pursued complementary strategies. One of the most direct is its follow up activities regarding the Colombian Congress. It monitors law initiatives that can affect actions related to collective interests and provides the legal assistance for popular actions and analyzes the potential opened up by new legislation. For example, Germán considered the relevance of some of the legislation about collective damages to issues of consumer protection.
With damages that he won in a successful suit against a government chemical company that was contaminating the Bogotá River, Germán established a Legal Environmental Fund that enables FUNDEPUBLICO to make its expertise affordable, often free, to its clients. It consults with citizens' organizations and communities regarding public interest issues and provides free legal services: for example, it has represented Ashoka Fellow Carmenza Morales and the citizens of Tierra Bomba Island in Colombian court at the national level. In recognition that such citizens' organizations are a direct source of information about the kinds of cases it seeks to litigate, FUNDEPUBLICO promotes the formation of new groups that are dedicated to the defense of collective rights. It then helps them to implement specific projects, with the support of FUNDEPUBLICO's Legal Environmental Fund.
FUNDEPUBLICO trains lawyers in the provisions that Germán discovered within existing Colombian law that support collective rights and helps develop strategies to develop new law by choosing cases with the potential for setting precedents; FUNDEPUBLICO also cooperates with law schools to help create a new generation of public interest lawyers for the country.
Germán initiated a process to clone FUNDEPUBLICO in the capitals of the Colombian provinces. His long term vision includes a network of similar organizations in other Latin American countries with similar case law structures.
Germán is a lawyer who initially developed professional experience in a well-known international bank. That led him to a decision to study comparative law, which he pursued on a scholarship in the United States. As a result of his educational experience, Germán began to reflect upon the limitations of national Colombian law and, in particular, the field of collective rights.
After his return to his country, Germán worked in the government as a public official. However, after reading several texts lost within the bureaucratic norm of the Civil Code, he began to think that it was possible to use that norm in defense of collective interests. Consequently, Germán began first to develop a text in which he formulated the basic tenets of litigation in collective interest cases that he would later put into practice in FUNDEPUBLICO; and secondly, he selected the first case which would allow him to prove his hypothesis. He chose to sue a state-owned chemical company responsible, to a great extent, for the contamination of the Bogotá River. The favorable outcome of this case not only led him to take on other cases of similar importance, but also to set the basis for a constitutional reform that accepted these popular actions. He abandoned his private practice to work full-time on the promotion of public interest legal actions.
On November 11, 1996, Germán died from complications resulting from a brain tumor. He will be remembered as a visionary social changemaker. His extraordinary efforts to improve society will endure through the organization he founded and the work of the many people he inspired. Ashoka Fellow Esther Sanchez, who organized a tribute to him after his death, wrote of Germán, "Germán knew that to live among the living, and to transcend death, he had to denounce personal interests and professional goals; that he had to take on his work as a mission, and not as a career." This seems a most fitting epitaph for the person who, perhaps more than any other, forged the new career in Colombia of the public interest litigation.