Nothing has embarrassed the self-proclaimed Spanish democracy of King Juan Carlos and Premier Adolfo Suarez more than the case of Els Joglars, a Catalan mime troupe convicted of insulting the army. Protests have come from the best-known writers and artists of Europe. Paloma Picasso has warned that the Picasso family will never agree to the transfer of her father’s “Guernica” from New York’s Museum of Modern Art to Spain until the four imprisoned actors are released. The case is so ludicrous, anachronistic and unjust that many outsiders are convinced the King will find a way soon to free the actors and end the embarrassment.

But whether or not the actors leave their prisons in Barcelona before the end of their two-year sentences, the case has revealed some of the flaws in Spain’s remarkable but fragile attempt at transition from the dictatorship of the late Francisco Franco to a parliamentary government. A latent, unhealthy fear of the army still ties the tongues of critics. And, after almost four decades of Francoism, people here feel that injustice to an individual or defilement of a principle are not worth fretting about so long as the outer forms of democracy are intact.

Els Joglars was a much-praised company headed by 34-year-old Albert Boadella. In the Catalan language joglars means jugglers in the medieval sense of performers who act, sing, dance and mime as well as twirl objects in the air. Boadella and Els Joglars received permission from the censors of the Ministry of Culture last August to present a pantomime, La Torna, based on the execution of two men during the Franco era.

Torna is a Catalan word for the little something extra that is thrown into a product or an offer to make it more acceptable. In the case that inspired the pantomime, this something extra was a Polish vagrant, Heinz Chez, who was executed in Tarragona in 1974 at the same time that the Catalan anarchist, Salvador Puig Antich, was executed in Barcelona. Both men had been convicted of killing policemen, Puig in an act of political terrorism, Chez in a nonpolitical fight.

The executions came in the emotional months that followed the assassination of Premier Luis Carrero Blanco in December 1973. Many Spaniards believed that Puig was convicted without much evidence and executed simply as a reprisal for the assassination of Franco’s Premier. At the same time, according to this view, the government did not want to provoke too much anger against itself and therefore decided to soften the impact by throwing in La Torna - the execution of Chez. Since both men had killed policemen, their simultaneous execution would make it seem that the government was treating Puig as a murderer, not a political prisoner.

By focusing on the military court that convicted Chez, the pantomime was criticizing the army, but the censors of the Ministry of Culture approved it anyway. That was not surprising. There has been an outburst of politics and pornography in theatres, movie houses and magazines since the death of Franco, and the government has wisely not tried to contain it too much. At the same time it passed La Torna, the ministry not only approved but decided to subsidize the production in Madrid of a play by Ramón del Valle-Inclán that had been banned in 1927 for ridiculing the army.

La Torna opened in September and performed in towns throughout Catalonia, Valencia and the Basque provinces for almost three months. On November 30, Boadella received a phone call from a military officer advising him to halt performances. Since he had government approval, Boadella decided to ignore the advice. On December 11, the office of the captain-general or military commander of the Catalonia region issued an order suspending all performances of the pantomime. Four days later, Boadella was arrested and imprisoned in the Modelo Prison of Barcelona on charges of insulting and injuring the army. His five actors were charged with the same crime but were not then imprisoned.

The pantomime had offended Lieut. Gen. Francisco Coloma Gallegos, the captain-general, for he had been Franco’s Minister of the Army when Puig and Chez were tried. Coloma Gallegos was one of the most Francoist and conservative officers in a Francoist and conservative army, and the Els Joglars affair was for him a kind of last hurrah. On April 26, Coloma Gallegos reached the mandatory retirement age of 66 and left active duty. But, by then, the damage had been done.

Coloma Gallegos invoked the military code of justice to move against Joglars. Premier Suarez and the leaders of the opposition had reached an agreement to write a new military code that will take from the army its right to try civilians. That prohibition will probably also be written into the new Constitution. Meanwhile, the Fundamental Laws of Franco were still in force, the army still had jurisdiction over civilians, and Gen. Coloma Gallegos was determined to enforce that jurisdiction. From the legal point of view, the fact that the pantomime had been approved by the Ministry of Culture did not matter.

In its official charge against Els Joglars the army said “the performance of [La Torna] constitutes a clear offense to the armed forces and specifically to military justice,” culminating “in a scene in which all the officers of the tribunal are completely drunk and read their sentence in this state.” The program for the play informed readers that it was based on the Chez case, and, the army said, “accused a military tribunal of playing with the life of a person for political reasons.”

The proceedings themselves had some drama. Boadella, who had been transferred to a hospital for treatment of stomach ulcers, escaped on the eve of the trial and fled to France. Angry army officers then ordered the arrest of the five actors. One, Ferrán Rene, also fled to France, but the four others - María de Maeztu, Gabriel Renom, Andrés Solsona and Arnaldo Vilardebo - stood trial.

The outcome was never in doubt: the army, after all, was both prosecutor and judge. The court-martial was made up of officers under the command of Gen. Coloma Gallegos. After listening to thirteen hours of testimony, it found the four actors guilty and sentenced each to two years in prison. Coloma Gallegos, acting as the final arbiter of justice, rejected all appeals for a reversal of the court’s decision and refused all requests for amnesty in the last few days before his retirement. He told the Spanish press, “The court-martial did not make any judgment about freedom of expression. It only judged whether people using that freedom of expression injured the armed forces.”

Students demonstrated on behalf of Els Joglars in Barcelona; a few actors did the same in Madrid. Performers in Barcelona went on strike for a week, joined for a day by their colleagues in Madrid. The parliamentary deputies from Catalonia issued statements of support for the troupe, and one Socialist deputy from Catalonia raised the issue in the Cortes. Some non-Catalan Left politicians also made statements of concern.

But the case did not evoke a single protest from any of the country’s leading leftist politicians. Socialist-leader Felipe González and Communist leader Santiago Carrillo have yet to criticize the army’s flagrant use of the dictatorial laws of Franco to suppress freedom of speech. Nor has Premier Suarez or any member of his Cabinet dared to speak out against the army’s contemptuous insult to the government in banning a play that the government had already approved.

The Spanish press also treated the matter with great timidity. El Pais, the influential Madrid newspaper usually quick to notice affronts to democracy, was circumspect in its editorial comment on Els Joglars. It found the conviction and jailing of the actors “inopportune.” It blamed the Suarez government far more than the army, for “the armed forces are obliged in such cases to apply their sanctions and judicial processes.” The government, in the view of El Pais had caused the problem by failing promptly to decree a new military code.

It is obvious that Spanish politicians and journalists are afraid of offending the army. It is probably an exaggerated fear. “Many of my friends are afraid of the army, more than they should be,” said a Western diplomat recently. “But when I tell them that their fears are unfounded, they reply, ‘You’re not Spanish; you don’t understand.’ ” This fear, founded or not, acts as a restraint on democracy.

The fear is based on history. Military dictators have ruled Spain for most of this century. The democratic experiment of the 1930s died in a Civil War because Franco and other generals would not tolerate it. No Western European country has a modern history so dominated by the military.

The Fundamental Laws of Franco assign to the armed forces the “defense of the institutional system.” That phrase enshrines a political role for the Spanish military. As a result, Spain’s generals and admirals see themselves as a kind of supreme court, the final arbiter of politics. The latest draft of the new Constitution suppresses that phrase but substitutes another, “defense of the constitutional order,” which will probably make the generals and admirals feel they have the same political duty as before.

Most of the generals and admirals - all more than 60, all veterans of the victorious Franco side in the Civil War - dislike what has been happening recently in Spain. The government’s legalization of the Communist Party before last June’s parliamentary elections tore down a basic tenet of Francoism. So did the government’s decision to grant the beginnings of autonomy to Catalonia, the Basque provinces and other regions of Spain. The consistent incidence of political terrorism since Franco’s death has also irritated the military leaders, who see the laxness of democracy as one of the causes.

Thus far, the army has done no more than complain. When the Communist Party was legalized, the army’s supreme council issued a statement declaring that the action has “produced a general repulsion in all units of the army. Nevertheless, in view of national interests of a higher order, the accomplished fact is accepted in a disciplined way.” On several other occasions, the generals and admirals have met with Juan Carlos to complain about both Premier Suarez and the Minister of Defense, Lieut. Gen. Manuel Gutiérrez Mellado. In the view of the officials, Gutiérrez Mellado has betrayed them by failing to push their views in the councils of government. The King, who enjoys the loyalty of the military as Franco’s handpicked heir, has been able to mollify the anger.

The military have many other problems that tear at morale. The 220,000-man army, 45,000-man navy and 35,000-man air force are poorly paid, poorly equipped, and poorly organized. The Spanish armed forces are almost as large as those of Great Britain but have only one-fifth the defense budget. Spain has been boasting that it will defend the Canary Islands against any threat from Africa. But, as one Western diplomat has put it, “it is doubtful that the armed forces could get enough money together to stage maneuvers in the Canaries that would put teeth into the boast.” The generals are also worried about what they perceive as Socialist and Communist attempts to organize the conscript army into some kind of trade union. Younger officers chafe under a system of such slow promotion that a man cannot hope to make captain until he is 40. On top of this, there is a continual debate within the armed forces over the value of the government’s proposal to join NATO. Some officers long for the modernization that NATO might bring them; older generals worry that a new system of organization might upset their style of life and command.

It is doubtful that the armed forces, despite these problems and frustrations, will reach the point of attempting a coup. According to one view, the military leaders are in no mood to challenge the election returns of last June 15 that rejected Francoism overwhelmingly and gave the Socialist and Communist Parties 40 percent of the vote. Said a diplomat, “What is the army going to do now? Take on 40 percent of the population in the streets?’ Other analysts insist that the army is so disorganized, so low on fuel and ammunition, and so poorly trained that it could not carry out a swift coup even if the generals wanted one.

Nevertheless, the politicians of Spain are averse to testing the military on an issue they perceive as minor. In their view, they had to legalize the Communist Party if they wanted the world to accept the June elections as democratic. They also had to start a system of regional autonomy if they were to avoid mass demonstrations and violence in Catalonia and the Basque provinces. But the presence of four actors in jail is not, in the view of Spanish politicians, vita1 to the preservation of the new Spanish system, and they therefore see no reason to annoy the military about it.

There may be a good deal of sense in this, but it also reveals some of the failings so far in the beginnings of Spanish democracy. After four decades of dictatorship, there has been little development of democratic attitudes, little understanding of the importance of the inner workings of democracy. Spaniards, for the most part, do not see a threat to four individuals as a threat to the democratic system as a whole. Even the protesters of Barcelona seem to see the case of Els Joglars as a threat more to Catalan culture than to Spanish democracy.

In fact, the case has probably attracted attention only because of the army’s role in it. At the time when the actors were being convicted in Barcelona, four journalists were jailed by a civilian court in Madrid on charges that they had written an article insulting to the King. Under the post-Franco law on freedom of expression, Spaniards may not write anything that is considered insulting or injurious to the King, the armed forces, or the unity of Spain. The case of the journalists provoked almost no protest.

Spaniards now live under a kind of administered democracy. The government doles out freedom of expression and freedom of assembly in limited amounts. Citizens have the right to hold demonstrations but the government still rejects applications for many of them and carefully monitors those that are approved. Spaniards have freedom of the press but the government still seizes offensive publications and fines and jails journalists. These limitations have been accepted by most Spaniards during this period when the politicians are sincerely trying to create a parliamentary system in which power will be determined by votes.

Most observers here predict a “happy” ending for the case of Els Joglars. Once a new military code is enacted, it is presumed that the army will no longer have the right to try civilians. In the strict legal sense, that should not affect Els Joglars, but the King has granted amnesty before to Spaniards convicted of deeds that are no longer illegal. It is likely that the King, after waiting a bit to avoid antagonizing the army, will grant an amnesty to Els Joglars. Even so, La Torna would still be banned. And no other acting company would be foolish enough to try that kind of play anytime soon. Whatever happens to Els Joglars now, Gen. Coloma Gallegos has won his point.

Stanley Meisler reports from Spain for the Los Angeles Times.