The educational counter-reform: Is there a democratic regime in Catalonia?
On 4 July, the High Court of Justice of Catalonia (TSJC) issued an order recognising its inability to enforce the 2020 ruling that made it compulsory for Catalan schools to teach at least 25% of subjects in Spanish. How has this situation come about?
The Generalitat's refusal to comply with the TSJC ruling on education
Faced with the refusal of most Catalan schools to provide compulsory education in Spanish, based on the regulations on language immersion in Catalan established in the 2009 Education Law and imposed by the Govern, parents who legitimately wanted their children to be taught in their mother tongue - which was the official language in Spain and in Catalonia - had to resort to the courts, But -although the courts usually ruled in their favour- their sentences did not produce "erga omnes" effects as they did not create jurisprudence and only affected the plaintiffs, and the school principals -backed by the Generalitat- refused to comply with the sentences and were supported in this by the educational community and the social environment, both of which were controlled by nationalism.
Organic Law 8/2013 for the improvement of the quality of education (LOMCE) had established the obligation of educational administrations to guarantee the right of pupils to be taught in Spanish, which was the vehicular language of instruction throughout Spain, and stated that, in bilingual Communities, a "reasonable proportion" should be kept between teaching in Spanish and in the other co-official language. Faced with repeated non-compliance with these provisions in Catalonia, the Minister of Education, Iñigo Méndez de Vigo, decided that an appeal should be lodged against the Generalitat. This made a significant difference because - since it was the State that appealed and not its citizens - the ruling of the TSJC would transcend individual cases and produce effects of a general nature.
On 16 December 2020, the TSJC ruled that the Generalitat was obliged to adopt the necessary measures to ensure that, in the teachings included in the education system of Catalonia, "all pupils receive effective and immediate teaching through the normal vehicular use of the official languages in the percentages determined, which may not be less than 25% in either case". The Generalitat tore its hair out over this alleged interference by the Court in what was its exclusive competence and lodged an appeal with the Supreme Court, which - on 23 November 2021 - did not admit the appeal, so that the TSJC ruling became final. Well, not so much, since the Generalitat's ability to break laws and rulings it did not like had not been taken into account.
The Minister of Education, Josep Gonzàlez-Cambray, refused to abide by the ruling and instructed school principals not to comply with it, for which he guaranteed them political cover and legal advice. The same opinion was expressed by the President of the Generalitat, Pere Aragonés, who stated that his Government would continue to defend and promote Catalan-language schools. In response to the Court's request that it indicate the measures it was going to take to implement the ruling, the Govern - once the two-month deadline for compliance had passed - asked for "time-out" in order to take the necessary measures to (not) comply with it, and the Court condescendingly granted it a 15-day extension. On 6 May of that year, the Parlament passed - with the support of the PSC and the Commons - Law 8/2022 on Official Languages in Non-University Education, which established that Catalan was the only vehicular language and that the use of Spanish - which was only a curricular language - would be left to the schools' decision in accordance with the sociolinguistic situation of their sociolinguistic environment.
The distinction is important, as observed by the linguistics expert Manuel Cabezas in his article "Legua vehicular v. lengua curricular", for whom the dichotomy of these terms was not the result of an authentic, responsible and argued technical debate, but "the fruit of the contubernium in the Catalan Monipodium courtyard between nationalists-independentistas". The vehicular language is used as an instrument for teaching and learning the different curricular subjects, and the curriculum is the set of subjects that must be known in order to complete a cycle of studies. To describe Castilian as a curricular language was tantamount to stating that it was just another subject of study and not an instrument for acquiring knowledge. "The dichotomy has been the latest linguistic engineering of the Catalan political caste to ignore the courts and allow a new contempt for court rulings".
Faced with the peremptory nature of the deadlines and the fact that it would take some time for the new law to come into force, on 30 May the Govern adopted Decree-Law 6/2022 with the aim of redesigning the Catalan school model. González-Cambray - who refused to set a minimum percentage of 25% in the teaching of languages because, he argued, it was not pedagogical, given that language learning was not a matter of percentages. These rules defined an educational model that was incompatible with the parameters taken into consideration by the TSJC in its ruling.
Despite being the instigator of the judgement, the Government disengaged itself from its execution, claiming that it was the responsibility of the TSJC. The State Attorney's Office not only did not request it, but asked the TSJC not to do so until it had been able to assess the degree of compliance by the Government with the measures it had announced to enforce the ruling, which included the adoption of a legal norm and a regulatory norm, and certain control measures, but did not include the obligation to respect the 25% percentage. This showed the connivance of the central government with the Catalan government, as it was very clear that the Generalitat would do nothing about it, since it had refused to comply with the ruling from the outset. The Advocacy should have acted in defence of the Government's interests, but in this case it acted in favour of the regional Government and not the national Government.
The TSJC found a situation of non-execution of the sentence by the Government, which had refrained from projecting its effects on the educational centres. The Court's decision that at least 25% of subjects should be taught in Spanish was an "obligation of result", which should be complied with immediately and effectively. It rejected the approach of the Abogacía del Estado and allowed the Asociación por una Escuela Bilingüe (AEB) to seek enforcement.
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The Generalitat relied on the Decree that did not include percentages in teaching to ask the TSJC to declare the "legal impossibility" of applying the ruling in the face of the existence of a "new legal framework", and the surprising thing was that the Court - breaking the continuity and coherence of its action - accepted the proposal in its ruling of 4 July.
Weaknesses of the TSJC's latest decision
The TSJC has recognised the legal impossibility of enforcing its ruling on the 25% because the recently adopted law and decree had changed the legal framework for education in Catalonia and, consequently, took the decision to suspend the deadline it had set itself for the enforcement of its own ruling. "We are faced with a situation that prevents the execution of the judgment as a result of the promulgation of legal norms that raise doubts of unconstitutionality". Therefore, instead of directly raising the issue before the Constitutional Court, it has urged the parties to do so, irresponsibly passing the "hot potato" to the parties involved in the process, such as the AEB. The Generalitat has won the time requested and a little more, because - given the central government's reluctance to challenge the two regulations - the foreseeable challenge by the AEB or any other interested party will not lead to the suspension of the application of these regulations - as would have happened if the State Attorney's Office had raised it on behalf of the government - and so the Generalitat will be able to continue applying its model of language immersion in Catalan and exclusion, or minimisation, of teaching in Castilian.
In addition, schools that have been obliged by judgement to provide 25% of their teaching in Spanish will be exempted from this terrible burden. As Antonio Jimeno pointed out, the few pupils who have managed to receive 25% of teaching in Spanish could be deprived of this privilege, because the Education Council has asked schools not to establish percentages in their language projects. "The TSJC has shirked its responsibility by passing the problem to the Constitutional Court, which will let it die in oblivion", especially - I added - if the pending renewal of the Court is carried out, which will provide it with a "progressive" majority more sensitive to the Government's demands. The TC is not characterised by the speed with which it acts, as evidenced by the fact that it has not ruled on the abortion appeal for 12 years. It is not so much a problem of insufficient resources - which there are - as of a lack of political will. "Only a question of unconstitutionality presented by the government against both regulations would make it possible to comply with the ruling, but it will not do so because it needs the 13 votes of the ERC, the 6 of the PNV and the 5 of Bildu to continue governing. Until a group of parties willing to enforce the law governs, it will continue to be impossible to speak Spanish in Catalan schools".
The nationalist authorities have shown signs of euphoria at this partial triumph over Justice without falling into disobedience (?). Josep Martí Blanch has affirmed in "El Confidencial", that the Government has not disobeyed the TSJC, but has used its competences to make the 25% sentence inapplicable, having modified the legal framework. "There has been no disobedience or insubordination, but rather an exploitation of the framework of powers, which means governing and making policy within the framework of the law". I could not disagree more with this statement, because, not only has there been disobedience and legal insubordination on the part of the Generalitat, but also a fraud of the law as big as the Sagrada Familia, and a flagrant interference of the executive power in the judiciary. Moreover, the Catalan authorities - especially Aragonés and González-Cambray - have committed crimes of disobedience, prevarication and contempt of court. According to Arcadi Espada, anyone with the common sense of justice knows that what the TSJC should have done, in the face of the twisted strategy designed by both governments, was to have told them: "you propose the legal reforms that you think are convenient and, while the Constitutional Court decides whether the reforms are compatible with the Constitution, comply with the law and apply the sentence". What the TSJC has done, in a putrid washing of hands of the classic Pilatesque order, has been to "legitimise the strategy of disobedience by accepting that the change in the legal framework makes it impossible to comply with the sentence". The newspaper "El Mundo" has stated in an editorial that "The TSJC, in a sad act of cowardice with an alibi of competence, shields itself in unconstitutional defects to ask the Constitutional Court to pronounce itself, something that could take years, while fundamental rights continue to be violated". The judges "cannot look the other way or ignore their mission to protect the rights and freedoms of citizens, nor can they allow separatism to make a mockery of the courts with the approval of the government".
Is there a democratic regime in Catalonia?
Events such as these raise the question of whether there is currently a democratic regime in Catalonia, where nail after nail is being hammered into the coffin of democracy. The fundamental features of democracy are compliance with the law and judgments, equality of citizens before the law, respect for fundamental rights, independence of the judiciary from the executive, and the regular holding of free elections.
1.- Compliance with the law and judgements
Since Jordi Pujol came to power in 1980, the Generalitat has systematically violated the Constitution, the Statute of Catalonia and national laws, as well as court rulings that were not to its liking, with absolute impunity. The various national governments have tolerated these constant violations in exchange for the necessary support of the nationalist parties for the national government. The situation of legal insubordination reached its "climax" with the adoption by the Parlament in 2017 of the laws on the referendum on self-determination and on the legal and foundational transitional nature of the Republic, followed by the unborn unilateral declaration of independence, thus violating, from the Constitution on down, all possible laws. The perpetrators of this coup d'état received a moderate sentence for sedition and embezzlement, but were quickly pardoned by the government of Pedro Sánchez without any legal basis and against the reports of the Supreme Court.
As for the rulings, countless rulings handed down by the TSJC, the SC or the TC have not been complied with by the Generalitat or by Catalan citizens. Of particular relevance was the institutional insubordination carried out in 2010 by the socialist president of the Generalitat, José Montilla, in the face of the TC ruling on the Statute, which constituted a fundamental precedent for subsequent non-compliance by the Catalan authorities at any level. The irrefutable proof of this has been the rejection of the TSCJ's ruling -validated by the SC- of the 25% ruling, in which the president of the Generalitat and his ministers, and the Parlament have flagrantly failed to comply with it, the latter adopting an "ad hoc" law to justify it.
The main culprits are obviously the nationalist parties, but it is worth noting the special responsibility of the PSC - which is not the nationalist branch of socialism, but the socialist branch of nationalism - which, in the end, always ends up supporting separatism in power, dragging the national government behind it. To justify his support for Law 8/2022, the leader of the PSC, Salvador Illa, has had the cheek to claim that this law will allow better compliance with the court ruling (?). It does not impose any percentage in the application - supposedly better, according to Illa - of a Law that establishes a minimum ceiling of 25% of teaching in Castilian in schools, and leaves it to the free will of its directors - controlled by the Government - to decide on the teaching to be given in the official language of Spain, so that, if they considered that the sociolinguistic reality required a percentage of 0%, no more teaching would be given in Castilian than that of the subject of Spanish Language and Literature.
2.- Equality of citizens before the Law
To paraphrase George Wells' fable in "Animal Farm", all Catalans are equal, but the nationalists are more equal than the rest. Nationalists control all spheres of power - political, economic, social, cultural, religious and media - and discriminate against non-nationalist Catalans. The Government imposes the use of Catalan in the Administration, fines those who title their businesses in Spanish, ignores authors who write in Spanish, threatens university professors who dare to give their classes in Spanish, abusively finances any activity that promotes the use of Catalan even outside Catalonia....
As Fernando García Romanillos has observed in "Voz Pópuli", linguistic nationalism has woven an effective discriminatory mesh against Castilian in the legal, fiscal, administrative and even technological spheres. Thus, for example, it requires justice professionals to have a C-1 certificate of proficiency in Catalan, and grants a 15% rebate on personal income tax to those who make donations to entities that promote the Catalan language. The Linguistic Policy Secretariat's website lists up to 138 legal provisions that prioritise the use of Catalan over Spanish in various fields, from the civil service to labelling, business activity and toponymy. AINA, a programme endowed with €13.5 million, has been launched to - according to vice-president Jordi Puigneró - "make machines and technology understand and speak Catalan".
One of the high points of anti-Spanish xenophobia is that the Catalan authorities boycott visits to Catalonia by King Felipe VI, whom Girona City Council has declared persona non grata, and other members of the royal family, such as Princess Leonor, who is not allowed to present the annual "Princess of Girona" awards in the Girona capital. Displaying an institutional rudeness alien to Catalan traditions, the nationalist leaders refuse to receive the King and pay their respects to him, and do not attend the events - even institutional ones - in which he participates.
3.- Respect for fundamental rights
The Generalitat violates the fundamental rights of non-nationalist Catalan citizens on a daily basis. The most flagrant violation is that of preventing Spanish-speaking Catalans from being educated in their mother tongue, which is the official language of Spain and Catalonia, a unique case in history. Despite numerous rulings by the TSJC, the TS and the TC that have sanctioned the right of Spanish-speaking Catalans to receive their education in Castilian, the Generalitat has imposed a regime of educational immersion only - or predominantly - in Catalan, and protected the failure to comply with rulings in which the courts have recognised this right for individual citizens. School principals refuse to apply the rulings and the social environment pressures those who benefit from them to renounce their right and, if they do not, they impose a relentless boycott, forcing them to leave the school and even the city. Non-nationalists are over-represented in Catalonia.
There is enormous social pressure against non-nationalists, especially in the towns in the interior of Catalonia where nationalism predominates, and their fundamental rights are not respected with the consent of the Generalitat and the local authorities. A borderline case was that of the girl from the "Turó del Drac" school in Canet de Mar, where violent demonstrations were held at the gates, in which the Minister of Education took part and calls were made to stone the minor's home.
4.-Independence of the judiciary
The Generalitat has done everything possible to control the judiciary. Proof of its undemocratic attitude is that the "Catalan Constitution", which was intended to be the Transitional Law, established the control of the judiciary by the executive, which appointed high-ranking judicial officials. Likewise, it openly pressures judges and courts when nationalists are indicted, with mass demonstrations in front of the judicial headquarters in which members of the Government took part, and the magistrates and prosecutors are sensitive to such pressures.
In the case of the prosecution of Artur Mas, Joana Ortega and Elena Rigau, the attorney general asked the chief prosecutor of Catalonia to prosecute them, but the majority of Catalan prosecutors were opposed, believing that they had not committed any crime, and Eduardo Torres-Dulce had to give the order to open the process. The ruling of the TSJC was very lenient as it exonerated the defendants of the crime of prevarication and only sentenced them to disqualification for disobedience. With honourable exceptions, the judges have been extremely tolerant of the members of the Committees for the Defence of the Republic, who for months have been holding constant violent demonstrations, cutting off traffic and destroying urban furniture. They have also carried out acts of harassment and "escraches" against magistrates, such as in the case of the instructor of the "Puigdemont case", Pablo Llarena, and his wife. The TSJC had so far resisted these pressures, but - after having maintained an exemplary position for months - has succumbed to them at the last minute and has issued an illogical, incoherent and regrettable sentence.
5.-Celebration of free elections
Regular elections are held in Catalonia, but they are not completely free, due to pressure from nationalist forces and the disruptive effects of the electoral system. Despite not obtaining a majority of the votes, nationalist parties have governed Catalonia since the beginning of the autonomous regime, except for the brief interlude of the tripartite governments. In the 2021 regional elections, the three nationalist parties obtained 48% of the votes, but achieved a large majority in Parliament and formed a government, despite the PSC winning the elections, as had already happened in 2018 after the victory of Ciudadanos. ERC won the same number of seats as the PSC, despite having 49,251 fewer votes, and JxC one seat fewer, despite a difference of 84,356 votes. The provinces of Lérida and Gerona - where nationalism has a stronger presence - are over-represented because, while 49,358 votes are needed to win a seat in Barcelona, 31,258 are needed for Gerona, and in the case of Lérida 21,019, less than half as many as for the great metropolis. If a balanced system of allocating seats according to population percentage and strictly proportional distribution were applied, the nationalist parties would never have won the Catalan elections.
The answer to the question posed in the headline of this article can only be negative. Catalonia currently has a regime that is formally democratic, but not substantially so, because of its many shortcomings. The idyllic oasis that the propagandists of separatism take so much pleasure in has turned into a pestilent swamp where politically incompetent and ethically irresponsible leaders, filled with hatred for Spain and the Spanish people, splash about.