The Spanish Constitutional Court ruling, and the Catalan language: a socio-political perspective

(read at the Linguapax meeting, Barcelona, September 16 2010)

a. The 2006 Statute of Autonomy

• 1) The 2006 Statute of Autonomy of Catalonia, which replaced the earlier 1979 Statute (which in turn recovered some level of self-government for Catalonia, after the 1932 Statute (during the Spanish II Republic) had been abolished by General Franco in 1938-1939, originated as a negotiated proposal adopted, after a political consensus was reached, by 89% of the Members of the Catalan Parliament on September 29 2005. During this process, an earlier draft was amended following the recommendations of Catalonia’s prestigious Consell Consultiu (Advisory Council) to remove any shred of doubt as to the constitutional nature of the text.
• 2) Only the conservative Spanish unionist party (Partido Popular) did not take part in the drafting process and its 15 MPs (out of 135 in the chamber) voted on their own against the text in the Catalan Parliament.
• 3) The text was scrutinised in the Spanish Parliament’s Constitutional Committee, and dozens and dozens of articles were amended, mainly by the Spanish Socialist party (in power) and its Catalan counterpart. Only the Partido Popular’s amendments were all rejected.
• 4) Several articles were copied literally from Catalonia’s 1998 Language Policy Act. They were retained without any amendment (presumably because the Committee felt they were fully constitutional). Two parties had voted against that Bill in Catalonia: the Esquerra pro-independence party (because they felt it was too watered down) and the conservative Spanish unionist party (Partido Popular), who felt it was too strongly worded. Note that though the latter party did not like the Act, it did not regard it as in any way unconstitutional, and did not refer it to the Constitutional Court.
• 5) The revised (reduced) text of the Statute of Autonomy is a pact between the Catalan Parliament and the two houses of the Spanish Parliament, and as such had to be ratified by the Catalan people in a referendum, as laid down in the Constitution.
• 6) As soon as the Statute had been adopted, (in the form of a State Organic Law, of constitutional status) was adopted by the Spanish Parliament, the Partido Popular announced it would present an appeal to the Constitutional Court, as Antoni Milian has just explained.
• 7) The Esquerra pro-independence party (at that moment one of the three members of the leftist coalition government in Catalonia) decided that it could not endorse the outcome, which fell very short – in their view – of what the Catalan Parliament had voted. Before the referendum was held their representatives were expelled from the Catalan government.
• 8) The Catalan people duly voted in referendum to accept the final watered-down text, on June 18 2006. 74% of voters voted for it, though half stayed away from the voting booths .
• 9) Though Spain’s law does contemplate that one of the powers of the Constitutional Court is to study any claim that the text of a Statute of Autonomy is unconstitutional, none of the 19 Statutes set up in Spain under the 1978 Constitution had been taken to court before. This in itself is an indication both that the Catalan proposal was the most advanced yet, and put to the test the ability of the Constitution to allow a higher level of autonomy than that accorded in the first round of Statutes (approx. 1978-1982); and also that Catalonia and the Catalans are not universally respected in Spain (see below).
• 10) Note also that the Partido Popular set a popular petition in motion against the future Statute, and claimed to collect over four million signatures throughout Spain which it solemnly delivered to the Congress of Deputies in Madrid (the lower chamber of the Spanish Parliament), in April 2006 (that is, most were collected even before the final text had been voted in Madrid). They were filed away and forgotten.
• 11) Nevertheless, all the Partido Popular’s initiatives and those of the Spanish nationalist media, some of whom could be classified as hate media, were aimed - in my view – at creating a social climate that would affect the Constitutional court’s judges’ opinions. They are, after all, only human.

b. The Constitutional Court Ruling

• 1) I imagine that at least some of the judges felt very uncomfortable at being faced with what was clearly a political, rather than a strictly legal, dispute.
• 2) Antoni Milian has explained the contents of the ruling , inasmuch as they affect the language articles of the Statute.
• 3) Allow me to add that the deliberations of the Court are, by law, secret. Nevertheless, several newspapers regularly published leaked information about the positions of the judges as regards the case.
• 4) The ruling itself was described by the Spanish Socialist party as a “victory for Catalonia” and a ”full-blooded defeat” for the Partido Popular as 92% of its claims had been rejected, while the leader of the Catalan socialists (and president of Catalonia) displayed his “indignation”. The Partido Popular for its part said it was satisfied because the Court had accepted a “large part” of its appeal, and that the unity of Spain had been saved (sic). Its Catalan counterpart said they were pleased, because Catalonia now had a “fully constitutional” Statute of Autonomy.
• 5) Note also that a Socialist appointee, the Ombudsman, also appealed against the Statute and this was seen in some circles as a safety valve, just in case the Partido popular withdrew its appeal before the court began its work.

c. The social impact of the Ruling

• 1) Many opinion leaders (and even I, and I don’t lead anything!) had said that in a democracy not a comma can legitimately (or more strictly, democratically or ethically, whatever the law says) be touched of a text after it has been through three parliamentary chambers and, especially, through a popular referendum to ratify it. They were therefore not satisfied by the ruling. (To be fair, the referendum could have been stayed until the Partido Popular‘s appeal had been resolved by the Court).
• 2) What is a growing sector of Catalan society actually celebrated the ruling, which was perceived as a test of Spain’s last chance to politically accept the level of autonomy that Catalonia aspired to and felt comfortable with. Some celebrations were organised well in advance (in view of the leaks, it was soon clear that at least substantial cuts would be made to the Statute). Who was (and is) this sector? They are in favour of Catalan independence. Many have held this opinion for years (and their families, perhaps secretly for long periods, for generations), while others have reached this position because they feel that Spain has been chronically unable to accept Catalonia and the Catalans as they are, and has instead subjected them to fiscal injustice, political discrimination and social animosity. All agree that Catalonia’s identity is under increasing threat and that Spain has consistently failed to adopt a federal outlook (if not system), despite the Socialists’ claim to be working towards an “España plural”. Most have moved on from a long belief that a federal model for Spain would be ideal (a belief held be many Catalan politicians since the second half of the 19th century), but have realised sooner or later that if no one else outside Catalonia wants a federal Spain (and all the signs are that this is the case) then it is pointless to row against the tide.

[Figure 1: Overall assessment of people from different Spanish regions. / Source: Sangrador, J. L. (1999). Identidades, actitudes y estereotipos en la España de las autonomías. Madrid: CIS]

• 3) For months socialists had described the general mood of Catalans as being (largely on the basis of the Statute’s bumpy ride) “Catalans emprenyats” (angry Catalans) or at best “Catalans perplexos” (perplexed Catalans). Whichever is closer to the mark, the monumental popular reaction to the ruling hit the headlines. Òmnium Cultural, a cultural organisation founded in the early 1960s to promote the language and the culture, had for months been organising a large-scale demonstration, which was to be held on the Saturday of the week following the ruling. Thus in the afternoon of July 10 2010, despite the summer heat, over a million (according to nearly all sources) turned out for the march across central Barcelona , behind the banner stating the carefully negotiated claim that “Som una nació. Nosaltres decidim” (We are a nation. We decide). The four parties that had drafted the original text, and the Catalan government itself, took part in it, as well as the main trades unions. Three facts stand out: firstly the sheer scale of the demonstration, which was considered to be the largest in Catalonia’s history; secondly, the abundance of pro-independence flags, alongside the “senyeres” (Catalan flags); and lastly, the fact that hundreds of thousands of these demonstrastors (of all ages and social classes, and not all native Catalans for that matter) kept shouting for “independència”.
• 4) Another group is also happy: those that at all costs want the maintenance of the supremacy of Spanish to be perpetuated even in areas, such as Catalonia, where it isn’t the traditional language, and is only widely spoken by the populace as a result from economic migrations from Spanish-speaking Spain since about the 1920s. The equivalent in Switzerland, Belgium or Canada would be politically untenable: such a view would want only the knowledge of German to be legally imposed in Geneva, or French in Antwerp, or English in Quebec city.
• 5) Beyond politics as such, there are two views of Spain (apart from that of separatists, of course): that Spain is built on the backbone of Castile and its language, values and culture, and that other cultures and languages (Basque, Galician, Catalan) are subordinate and deviant (indeed, some have even openly asked whether the Castilian brain is not better equipped to command!); and that Spain is multilingual, multicultural and indeed multinational, and for everyone to be comfortable inside it, each nation has a right to be treated in the same way, as an equal, by the state.
• 6) There are many examples of these two clashing views of Spain. They appear in poetry, in speeches, in discourse. A prime, recent and, to my mind, very influential example of the unitary Spanish discourse is the 'Manifiesto por una lengua común' (Manifesto for a Common Language), publicly presented in Madrid on June 23rd 2008. It was signed by a number of people whose ideological views are well known (including Mario Vargas Llosa, Félix de Azua, Albert Boadella, Arcadi Espada and Fernando Savater). They believe there are “growing reasons for being worried in our country about the institutional situation of the Castilian language” , and go so far as to claim that “There is an asymmetry between the official languages of Spain, which doesn’t imply injustice (?) of any sort, because in Spain there are diverse cultural realities but only one of them is universally official in our democratic country”. The affirmation that the situation is not unjust is so grotesque that even in the original text there is a question mark after the word “injustice” in the clause “which doesn’t imply injustice (?) of any sort”. It seems that even the author of the text doubts his (or her) own words! Yet the “common language” discourse pervades this Constitutional court ruling!
• 7) Nevertheless, it is clear that the members of this Constitutional Court do not adequately represent both points of view. Of the 12 members (10 actually, because one dies and has not been replaced; and another was voted by the rest as having a pro-Catalan vested interest in the issue, for having written one report for the Catalan government). Only one was (and is) Catalan. This is very different, for instance, from the scrupulously respectful composition of Canada’s Supreme Court; and people such as former president of Catalonia Jordi Pujol said many months ago, in so many words, that the new Statute of Autonomy was a red rag before a bull, and was sure to be interpreted with a Spanish nationalist bias.
• 8) There is some talk of taking the Ruling to the international courts. Whether or not a human rights issue could be convincingly put remains to be seen.
• 9) It is widely stated that the ruling does not clarify and illuminate, but rather attempts to keep all sides happy and draws a rather erratic middle road. Not the task of a Constitutional Court whose prestige, even before the ruling, had been drastically reduced, mainly because of political parties’ interference (or deliberate lack of interference, such as the failure to replace five of the judges whose term of office expired several years ago... or who died in the meantime.
• 10) What is perfectly clear is that the Ruling opens the doors wide for a high level of judicial conflict. It draws on different, and sometimes conflicting, criteria. For instance, it states that both official languages must be exactly equal in status – though the Constitution itself merely says that language other than Spanish will also be official as laid down in the relevant Statutes of Autonomy, and makes no mention of this criterion – but that only the knowledge of Castilian is mandatory! Again, the official use of Catalan may not be laid down (despite being in law since 1998 and not having once been appealed against) as being “preferential”, but at the same time it is legitimate to take positive discriminatory measures to overcome the negative effects of history. What will happen in the future? Will every single future official measure that refers only or mainly to Catalan be referred to the courts?
• 11) The Ruling therefore makes politicisation of language issues in Catalonia (and elsewhere: the jurisprudence affects the whole of Spain, of course) much more likely. Indeed, there all already cases in the offing, affecting language issues: the new Education Act and the Immigration Act are but two examples. In a word, the ruling has opened the floodgates to a real danger of linguistic peace being broken.