Abstract
One of the characteristic features of the constitutional regeneration of Spain in the late 1970s was the constitutional recognition of the country’s linguistic diversity. In strict compliance with the proclamation made in the preamble (“The Spanish Nation… proclaims its will to: […] Protect all Spaniards and peoples of Spain in the exercise of human rights, of their cultures and traditions, and of their languages and institutions”), Article 3 SC sets out the guidelines for a linguistic model that, combined with the clause governing the gradual exercise of the right to autonomy of the nationalities and regions that compose the common and indivisible country of all Spaniards (Article 2 SC) and in the light of the parallels with the gradual planning, by means of a statutory enabling clause, of the political symbols of that complex unitary community (Article 4 SC), may be considered an open model but by no means an imprecise or incongruous one. Notwithstanding, therefore, the details of other constitutional provisions governing linguistic matters, the cornerstone of possible constitutional order in this matter lies in the interpretation of the sense and scope of Article 3 SC.
A modified and extended version of this contribution will be brought out in an e-publication in Spanish in an upcoming monographic issue of the Revista general de derecho constitucional (RGDC) by Iustel dealing with STC 31/2010.
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Notes
- 1.
A reference to the clauses of the constitution governing linguistic matters can be found in Castillo (2008), pp. 309–346.
- 2.
A broad and graduateable process of opening up, but within an inclusive political framework, marked by structural demands of solidarity and unity, a consequence of their constitutional supposition, ex Article 2 SC (see, in synthesis, Solozábal Echavarría 2009, pp. 53–63), which are clearly set out in Articles 138 (“2. The differences between the statutes of the different Autonomous Communities may in no case imply economic or social privileges”) and 145 (“1. Under no circumstances shall the federation of Autonomous Communities be allowed”). This constitutional channelling of the process of autonomy allows, if it does not impose, a restrained characterisation of the sense and scope of the principium dispositivium (see, in synthesis, López Guerra 2009, op cit., pp. 2067, 2069–2070) in light of the unequivocal import of Article 1.2 SC (see, in synthesis, Aragon Reyes op. cit., pp. 25, 36–43).
- 3.
This complementary statutory intervention, by application of the constitutional enabling clause, for the purpose of constituting the effective constitutional existence of “territories provided with a statute of linguistic co-official status” lies at the basis of constitutional jurisprudence, from STC 82/1986 (FJ 3) through STC 337/1994 (FJ 6) to the more recent STC 31/2010 (FJ 14).
- 4.
The operative reality of the social presence of that Spanish language, in general, used throughout Spain is denoted in the fact that, in common usage, the term “Castilian” is replaced by the identification “Spanish”. This term is particularly expressive of that cultural dimension that, ex Article 3.1 SC, governs the national territory as a whole and that, ex Article 3.3 SC, is considered worthy of respect and recognition as an integrating part of a rich national heritage that, insofar as it contributes to apprehending and structuring the Latin American cultural area, unquestionably extends beyond merely national bounds.
Moreover, in terms of its genesis, it is clear that in the formation of the current Spanish language, Castilian has borrowed loan words of very diverse ranges from the other Iberian languages (to illustrate this point, see Hernández (2011).
- 5.
Before the second wave of statutory reforms, such as those resulting in the renovated Statute of Autonomy of Catalonia SACat, some of whose provisions on linguistic matters we shall examine again in 2, in constitutional jurisprudence, when referring to interventions in this matter, mentions to linguistic competence alternated with references to mandates or authorisations, reflecting the regulation of the inherent content or scope of the co-official status (with regard to the jurisprudential detail regarding this lack of definition see, in particular, STC 87/1997, FFJJ 3–4).
- 6.
The fact that such hypotheses are improbable in today’s Spain should not prevent us from considering the long-term possibility that situations might arise of a hypertrophied configuration of identities, on similar drifts, through the invocation of that (collective) right to a language of their own that, in the process of territorial restructuring that followed the political break-up and dismembering of the state within the Soviet political space, was recognised in some of the constitutions of the political territories that were granted autonomy within the framework of the Russian Federation (on the complex linguistic structuring of that Euro-Asian space see Ruiz Vieytez 2004, (http://www.ciemen.org/mercator/pdf/simp-vieytez.pdf).
- 7.
In such a case (STC 31/2010, F 14), the own languages of residents (including EU citizens) and the languages of origin of naturalised Spaniards would remain outside this classification.
Another issue would be whether, looking to the future, it might be constitutionally viable to recognise the indigenous languages spoken in the autonomous cities of Ceuta and Melilla as “Spanish languages”. Any doubt in this regard is due not so much to the failure to comply with the proviso of “Spanishness”, if it is accredited that, because they are spoken normally in the basic political community, they can be characterised as Spanish languages but rather to the explicit wording of the condition ex Article 3. 2 SC that any recognition of official status must be by means of a statutory declaration “in the respective Autonomous Communities” (in this regard, see my Castillo (2008) op. cit.—Note 1—pp. 321–322). In such a case, there would be nothing in the constitution to obstruct, and indeed the conventional commitments of the ECRML would advise the regulation of the provision of the teaching of such languages and a deferential linguistic practice in the provision of public services (cf. Informe sobre la aplicación en España de la Carta europea de lenguas regionales y minoritarias, 2010; available at http://www.coe.int/t/dg4/education/minlang/report/Periodical/Reports/SpainPR3_es.pdf).
- 8.
On the precise meaning of the concepts used here to bring greater flexibility to the argument on the existence of a constitutional limit to the evolution of an open linguistic model, see, for example, Callister (1998).
- 9.
A referring clause that in substance has been included by Generalidad [Catalan Government] Act 35/2010, of 1 October 2010, on Occitan, Aranese, in Aran (in reality, Aranese is a variation on the Gascon language, which is one of the forms of Occitan), pending a ruling in a recurso de inconstitucionalidad (cf. Dictamen del Consejo de Estado núm. 970/2011, of 7 July, majority ruling with the dissenting vote of Council-member Herrero Rodríguez-Miñón).
The Aranese Act develops and completes its legal system intensively. This is particularly evident in what might be considered to be a sort of central theme, variously and not always unequivocally formulated, a directive of preferential normalised use of Aranese (in this regard, see Dictamen num. 22/2010, of 5 August 2, of the Consell de Garanties Estatutàries de Catalunya, on the Bill on Occitan, Aranese in Aran [proyecto de ley del occitano, aranés en Arán], which unanimously concluded that “with the purpose of avoiding equivocation, it is proposed to abolish the term (preferential)”, in Articles 3 a) of that bill).
- 10.
In 1979, the linguistic question had encountered a relatively synthetic commitment (outside Article 27.4 and Additional Provision Five), in Article 3 of the now repealed Statute, which was applied intensively in the course of a term that focused initially on the Linguistic Normalisation Act 7/1983, and later on the Linguistic Policy Act (1/1998) (on the Linguistic Policy Act (1/1998), see the various contributions and the documentation compiled in the journal Teoría y realidad constitucional, Issue 2, a monographic study on languages and constitution).
- 11.
Following endorsement in a referendum on 18 May, 2006, with 73.9 % of valid votes cast, the SACat (BOE—Official State Gazette, No. 172, of 20 July, 2006, pp. 27269–27310) came into force on 9 August, 2006.
- 12.
The appeal submitted on the grounds of unconstitutionality by ninety-nine congress members of the PP parliamentary party (RI No. 8045-2006) was ruled on in STC 31/2010, of 28 June; the ruling is referred to insofar as its subject is not discharged by extinction or with which STC 137/2010, of 16 December (Second and Third Ruling), is congruently issued at the behest of the Ombudsman (RI No. 8675-2006).
Likewise, although on a separate plane, the rulings of the Constitutional Court SSTC 46/2010 and 47/2010, both of 8 September 2010; STC 48/2010, of 9 September 2010; STC 49/2010 of 29 September 2010; and STC 138/2010 of 16 December 2010 must also be considered as rulings on the RIs submitted by the Government of Aragon (RI No. 9491-2006), Balearic Is. (RI No. 9568-2006), Valencia (RI No. 9501-2006), Murcia (RI No. 8829-2006), and La Rioja (RI No. 9330-2006).
- 13.
For a detailed analysis, see the monographic pieces offered by various periodicals, such as El Cronista del Estado social, 15 October, 2010, and the Revista catalana de pret public, 43, July 2010; similarly, for a more limited perspective, not without systematic pretensions, see the different contributions to REP., No. 151, monographic (coord.: A. López Castillo/J. Tajadura Tejada) on El Estado autonómico en cuestión. La organización territorial del Estado a la luz de las recientes reformas estatutarias (2006–2010).
- 14.
In this regard, for the synthesis it makes of the issue, Solozábal Echavarría op. cit. (Note 20), 2011, pp. 203–229 is of interest.
- 15.
Questioned almost in its entirety (except for Articles 12, 37.1, 44, 65, 143 and 146.3), the bulk of the decisions relating to statutory linguistic discipline are of an interpretative nature, which only in some of the cases (such as in relation to Articles 5, 6. 2, 33. 5, 34, 35. 1 and 2, 50. 5) are reproduced in the dispositive part, to which also the declarations of constitutionality (Article 50. 4) and unconstitutionality (Article 6. 1) lead.
Otherwise, independently of the matter relating to the perfectible legal certainty of those interpretative rulings that have yet to be issued (Articles 11, 33. 1–4, 36. 1 and 2, 101.3 and 102. 1, 3 and 4, and 147.1 a), of STC 31/2010, it is worthwhile highlighting a particularly expressive element of the jurisdictional nature of the control. This is the impossibility of ruling on the sense and scope of statutory provisions with regard to whose supposed—entirely unfounded—unconstitutionality has been argued by the appealing parties that, in this point, ignoring a charge of process, required even within the objective framework of a process of direct control of constitutionality, consisting in providing a minimum foundation for the constitutional grounds for the appeal (Article 6.3 and 5).
- 16.
In this regard, see Heading III, 2°.
- 17.
Without that reflexive understanding of the constitutional duty to know Castilian, a claim of ignorance of the language or a simple refusal to use it in relationships with the public authorities would be exposed to police surveillance and a sanctionary procedure.
An interpretation of the constitution which that is more in keeping with the principle of freedom of language has led the CC to rule that the duty to know Spanish must be considered to have been fulfilled in “the presumption that all Spaniards know it”, a presumption iuris tantum that, presupposing a knowledge that is practically coextensive with the area of application of the constitutional order, lies in an expectation of public provision in matters of education and training and that, should the safeguard of guarantees be endangered or if the full exercise of the constitutional law be hindered, any person, even someone of Spanish nationality, could legitimately question ad casum. In short, this is a presumption that may be nullified in cases of ignorance or insufficient knowledge of the official Spanish language either because a person arrested or imprisoned credibly so claims or because it becomes clear in the course of police action (cf. STC 74/1987, cit.).
- 18.
For the purposes of maintaining as an effective reality that presumption of knowledge of the Spanish language of common use (a language common to all Spaniards or a common official tongue of general scope as CC jurisprudence has traditionally put it; cf., among many others, SSTC 84/1986, 82/1986 and 56/1990). the clause, which is formally presented as a duty of all Spaniards, must be related to the various powers of intervention of the public authorities for the purposes of ensuring and fostering the ability of all Spaniards to deploy their capacities through participation in public life, whatever their respective linguistic systems and dialectical forms of speech, be they of Castilian or of other Spanish languages,or even of other languages native to their place of origin.
In any case, a deliberate refusal by Spanish nationals who manifestly know the Spanish language to use it goes beyond the specific field of safeguarding the guarantees of arrest and due process and should be considered to form part of an ideological liberty, in that it can be extended to positions of indemnity compatible with the safeguarding of public order that constitutionally limits its exercise and, in any case, as an intended statement of conscience instrumental to civil disobedience, with political pluralism.
- 19.
It is within this line of reductive interpretation in then light of the constitutional framework that my Castillo (2008) cit. (Note 1) operates.
- 20.
It is true that the characterisation of this hermeneutic effort by the CC may invite criticism (thus, for example, Milian Massana (2010) cit. (Note 20), p. 133: “It is not a question… merely of an interpretation of the precept, but of a mutation”), but it seems equally true that a critical approach similar to the technique used by the CC might prove less convincing if, leaving aside any assessment of a hypothetical alternative of making a declaration of unconstitutionality, everything was limited to opposing an interpretation in line with the constitutive declaration of the CC with regard to the constitutional framework in which the constitutional model of territorially based linguistic conjunction should be developed in order not to exceed what might be called—to use our previous simile—the breaking point of Article 3 SC (it is only possible to reach that point of no return legitimately through an express reform of the Constitution that, as we have seen, cannot be limited to amending Article 3).
In any case, if, following abstraction of its consequent jurisprudential interpretation, it can be critically argued that Article 3.1 SC is “an unusual precept in comparative law” [thus, for example, Enric Fossas Espadaler, in his commentary on the jurisprudence relative to 3 SC, in Casas and Rodríguez-Piñero 2009, p. 65 and, likewise, Milian Massana 2010 cit. (Note 20), p. 133], what can one say of the intended structuring, through statutory clauses, as Article 6 SACat, appears to have sought to do on a similar duty with regard to the other official Spanish languages?
- 21.
In actual fact, using a deliberately open formula, the CC ruled in favour of an open—if not undifferentiated (two-way?)—conception of the meaning of such compensatory measures to maintain “the legitimacy of the legislator’s adopting, where applicable, proper and proportionate measures of linguistic policy intended to correct, where they exist, historical situations of imbalance of one of the official languages with regard to another, and thus rectify the secondary or deferential position one of them might hold”.
- 22.
With regard to the external criticism, we refer the reader here to a somewhat nuanced Catalan theoretical perspective: see the commentaries by Milian Massana, Pons Parera, Pla Boix and Muro Bas, in the special issue of Revista catalana de pret public (cit. Note 20) on the Statute.
With regard to the criticisms raised within the CC itself, of varying tone and form, whose details it is not possible to address here, the dissenting votes of Conde Martín de Hijas, Delgado Barrio, Rodríguez-Zapata Pérez and Rodríguez Arribas are of interest.
- 23.
Translator’s Note: ”recurso de inconstitucionalidad: application for judicial review of proposed legislation; the ground of this application or appeal which can only be brought by MPs—diputados—elected members of the Senate or upper chamber—senadores—or members of the Cabinet—Gobierno—is always that the proposed act—ley—or bill—proyecto de ley—violates some constitutional principle; it is heard by the Constitutional Court—Tribunal Constitucional”, Alcaraz Varó, Enrique and Hughes, Brian. Diccionario de Términos Jurídicos Ariel Derecho 7th edition 2003, p. 903].
- 24.
Granted leave to proceed by ruling of 27 October 2009, RI No. 8741-2009, moved by more than fifty members of congress from the PP parliamentary party, targets Paragraphs 7, 20, 22, 27, 28, and 36 of the Preamble; Articles 4.2, 8.1 and 3, 9.2, 10.2 and 4, 17, 51, 52, 53, 55.1, 52, 53, 55.1 and 6, 57.1, 58, 59, 61, 64.4 and 5, 68, 70.1, 104.3, 109, 111, 112, 114.1, 117.1 c), d) and f), 119, 120, 121, 125, 153, 154, 155, 158.1 and 2 a), I, II, and IV, and f), and 161; and Additional Provisions II and IX.
A good example of the expectations in the light of a punctilious and incisive regulation may be seen in the commentary by Milian Massana (2010) loc. cit., p. 135: “This law, compared to the preceding legislation (Art. 21.2 and 2 LPL) and the legislation examined by the Constitutional Court in STC 337/1994, to a great extent restricts the sphere in which teaching in Spanish is guaranteed. In the light of the case law of STC 337/1994, this circumstance already called into question the constitutionality of some of its points when it was passed”.
- 25.
I made a similar call for compromise, without in any way demanding a radical abandonment of the normalisation policies, with my argument for an overarching need to return to normality, in my Castillo (2008) op. cit. (Note 2). In a very significant article published more recently in El País (“Evitar la guerra lingüística” [Avoiding a linguistic war?], El País, 30 April, 2011), one of the protagonists of the debate in Catalonia argued in similar terms for an inescapable renewal of the linguistic commitment, without prejudice to the possible maintenance of Catalonia as an educational centre of gravity.
If the development of this or other types of system of joint operation of the teaching languages in education were to be considered as a pro-Spanish attack on the Catalan school system, then the traditional exclusive Spanishism [españolismo] has been replaced by a newly forged Spanishism, emerging in a territory with its own language, which dressed up as consequent Catalanism might seem to have set its sights, just like the Spanishism of yore, on undervaluing and denying its position as a teaching instrument (without which a tongue loses its social presence and, in any case is undervalued, as Antonio Milian Massana rightly argues with regard to the Catalan Language, in Los derechos lingüísticos en la enseñanza de acuerdo con la Constitución, REDC 7, 1983), directed no longer towards Catalan but Castilian, which this movements seek to relegate to a mere subject on the curriculum of the educational system of Catalonia.
- 26.
With regard to this detail, cf. Dictamen del Consejo de Estado núm. 970/2011, of 7 July (available at (http://www.consejo-estado.es). The RI has been granted leave to proceed by the CC, which, it is reported, in consonance with the government’s invocation of Article 161.2 SC, suspends the validity and applicability of the contested precepts (Articles 2.3, 5.4 and 7, 6.5).
- 27.
See Act 30/2010, of 3 August 2010, on the veguerias (cf. Dictamen del Consejo de Estado núm. 2440/2010, of 2 December 1992; available at (http://www.consejo-estado.es), amended by Act 4/2011, of 8 June 2011, which postpones its full entry into force.
- 28.
The pertinence of this type of systematic constitutional interpretation is concisely referred to in the presentation (El Estado autonómico en la encrucijada) in Issue 151 (monographic) of the REP., cit., pp. 9–24, which called into question the notion that by means of a mere statutory reform one might presuppose "that same condition of national reality (which in STC 31/2010 is expressly extended to a constitutional recognition of “nationalities” ex Article 2 SC) a propos of an internal region –in this case the Aran Valley–… lacking all coverage in the aforementioned Article 2…” (p. 22).
- 29.
For information purposes, there follows a partial reproduction of the ruling of STS, Court III, Section IV, of 10 May, 2011, issued in cassation (Appeal No. 1602/2009) against the sentence of the Contentious-Administrative Court (Section V) of the High Court [Tribunal Superior de Justicia] of Catalonia, of 30 September 2008 (Judge responsible for drafting the leading opinion: Antonio Martí García): “(…) we uphold the appellant’s right for Castilian to be used also as a teaching language in the education system of the Autonomous Community of Catalonia, and in consequence and for this purpose the new situation created by the declaration of Ruling 31/2010 of the Constitutional Court which considers Castilian also to be a vehicular language of education in Catalonia together with Catalan including the right of children in infant education and in the first cycle of primary education to be schooled in the tongue petitioned by their parents… ”.
The case law, which is also reproduced in the STS, of 19 May, 2011, issued in the case of Appeal to the Supreme Court [recurso de casación] No. 395/10 (same judge), and which had already been applied on previous occasions, in the sentences of the same court and section, of 13 and 16 December 2010, issued in settlements of the Appeals to the Supreme Court No. 796/2009 (judge: Celsa Picó Lorenzo) and 1839/2009 (judge: Celsa Picó Lorenzo), comes from the ruling of the Supreme Court of that same court and section, of 9 December 2010, issued in the case of Supreme Court Appeal No. 793/2009 (judge: Santiago Martínez-Vares García).
- 30.
At the beginning of September 2011, the press (cf., for example, La Vanguardia, of 3 September 2011; El País, of 4 September 2011) reported on the controversy generated in the CACat as a result of the resistance to the educational administration of the government of Catalonia that, with political support from most of the parliamentary forces (See La Vanguardia cit.: Ultimátum del TSJ a la Generalidad para que el castellano sea lengua vehicular en la escuela; El PSC se alinea con la Generalidad en “la defensa del modelo lingüístico”, etc.; at the same time a motion was announced by members of parliament from the People’s Party in the Parliament of Catalonia to demand compliance with the jurisdictional rulings; See La Vanguardia cit.: “El PPC presentará una propuesta en el Parlamento para forzar el cumplimiento del fallo”), appeared to indicate a clear desire not to comply.
Here it is worth differentiating between the logic of a political reaction that is not incompatible with the formulation and lodging of the corresponding appeals in process of jurisdiction and a possible derivation, in the form of defiant statements and attitudes, expressing disobedience with the mandates and obligations that might be imposed within the framework of the current constitutional order.
This episode, while evidencing a certain break-up of the Spanish political panorama, is also an example of the dysfunctional exercise of their respective powers by the constitutional organs with powers of linguistic matters: in the case of the jurisdictional bodies, because it is within their powers to raise questions of unconstitutionality and they have failed to do so (perhaps awaiting the ruling of the RI currently pending on the Education Act), even when constitutional reinterpretations of the statutory clauses show a clear incompatibility between the constitutional model of territorially based linguistic conjunction and provisions such as Article 21 LPL, and, in the case of the political bodies, because in neither house of the national parliament are other linguistic initiatives being proposed that are not related to the extra-territorial projection of the other Spanish languages and because they have not received from the Spanish government any initiative intended to provide some systematic and congruent structuring of this complex linguistic regime.
- 31.
Merely for information purposes, one might consider, for example, the hypothesis of a renewal of external uses and in the framework of the EU of other Spanish languages that, without calling into question the respective qualifications of intervention, might seek to safeguard the national interest underlying the achievement for the common Spanish language of a (generic or specific) status as a working language.
With regard to this and other possible situations of harmonised intervention by the national legislator, see my lecture at the symposium on Lenguas y Constitución española [Languages and the Spanish Constitution], UAM, 28 November 2011.
- 32.
Minorías y mayorías en el poder constituyente, in Rubio Llorente (1993), pp. 135–163.
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Castillo, A.L. (2013). Spanish Languages and the Constitutional Order to Be Upheld (or How to Report on a Continuous Present Half-Way Through the Day). In: López - Basaguren, A., Escajedo San Epifanio, L. (eds) The Ways of Federalism in Western Countries and the Horizons of Territorial Autonomy in Spain. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-27717-7_32
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