Has the Separation of Powers Gotten Out of Fashion?

“History is irony on the move,” wrote the exiled philosopher E.M Cioran some decades ago, and the latest political developments in Poland are a perfect illustration of his insight. Till yesterday, the Polish post-Communist development was the most powerful example of the universal attractiveness and transformative power of liberal democracy. This same Poland today has become the symbol of the fragility of liberal democracy. Poland’s turn to illiberalism is an example of something that should not have happened. Political commentators are struggling to understand why this country, a poster child of post-Communist success and Europe’s best economic performer of the last decade, has voted for populists whom it threw out of power less than a decade ago? Why has one of the most pro-Europe societies in Europe put in power a Eurosceptic party? Why Poles voted for a party that is transparent in its aversion to independent institutions like the courts, the Central Bank, and the media? And how did it happen that a party, which till yesterday was widely viewed as unfit to govern and taken hostage by a conspiratorial thinking, captured the imagination of Polish society? Answering these questions challenges some of the basic assumptions of the post-1989 world.

What makes Poland so scary for many is that it demonstrates that even in the case of economic success many opt for a government that represents not their interests but also their identity. It also revealed that a shared belief in a particular conspiracy theory could play a role previously reserved to religion, ethnicity, or a well-articulated ideology, thus making fun of all dreams about democracy as government by argument. It is the belief in the Smolensk cover-up and not age, income, or education that appears to be the strongest predictor of whether a person will support Kaczyński’s party.

Poles are not unique in believing, en masse, in the existence of a government cover-up, despite a dearth of evidence. According to the recent opinion polls, between half and three quarters of people in various Middle Eastern countries doubt that Arab hijackers pulled off the 9/11 attacks; four out of ten Russians think that Americans faked the moon landings; and half of Americans think their government is probably hiding the truth about 9/11 attacks.1 Conspiracy theories and conspiracy theorists have existed in abundance everywhere, for as long as there have been suspicious deaths and powerful people. The sense of never-ending transition has made post-Communist European societies particularly fertile ground for their spread. Scholars tend to agree that these sorts of theories are at their most popular during periods of major social change, and that they represent a desire for order in a complex and confusing world. This helps explain why the Smolensk Conspiracy has become quasi-ideology within the Law and Justice party. The “assassination hypothesis” has helped to consolidate a certain “we”—we who do not trust the government’s lies, we who know how the world really works, we who are ready to stand for Poland. The Smolensk conspiracy was critical for bringing Kaczyński back to power, because it both mined a vein of deep distrust Polish people have in any official version of events and fit with their self-image as victims of history. Law and Justice supporters were not ready to accept Donald Tusk’s claim that Poland is now a normal European country, run by rules and not by shadow puppet-masters. For the Kaczyński crowd, the claim of normality was the deceit. The return of PiS to power marks the end of the ideology of normality as the major intellectual paradigm in Central Europe.

In a recent paper entitled “The Political Economy of Liberal Democracy,” American economists Sharun Mukand and Dani Rodrik argue that the question to be asked is not why only few democracies are liberal, but why do liberal democracies exist at all. Why should we expect that when people have the right to elect their government they would rather choose to defend the minority than to empower majority. What defines liberal democracies is respect not only for the property rights and the right of the majority to win elections and form a government, but also civil rights understood as non-discrimination under the law and rights of minority. What does make liberal democracy an unlikely outcome of the political development is the fact that while property rights are protected by the power of the powerful (the rich are strong enough not to allow nationalization and violation of the property rights) and political rights are advanced by the aspirations of the numerous (it is majorities who elect governments), the respect for civil rights comes from happy coincidences and constellations. It is in very rare cases that the powerful find it necessary not only to defend their property, but also to protect the rights of the powerless minorities. It is also very rare when the majority thinks about its future as a political minority and it makes it come up with constitutional provisions that prevent the concentration of power. The real appeal of liberal democracy is that you do not fear losing too much, but its disadvantage is that liberal democracy is a political regime without proper victory. In the old times invaders celebrated their victory by giving the conquered city for three days to the mercy of the victorious army. Victory meant that rules do not apply for you. In liberal democracy the conqueror is not allowed to rape the women of the town—at best he can invite them for dinner.

In order to make sense of the success of the populist and radical parties in Central Europe, it is important to recognize that they are constitutional movements. They promise to their voters what liberal democracy cannot give them—the old sense of victory as a game without rules and revenge against real or imagined wrong doers. They promise revenge. The appeal of these parties is attractive to the threatened majorities who fear that foreigners are overtaking their countries and threatening their way of life. They blame the real or imagined loss of control over their lives on a conspiracy between cosmopolitan-minded elites and tribal- minded immigrants. For them, any complexity is conspiracy. They blame liberal ideas and liberal institutions for the weakening of the national will and for eroding the national unity. What makes the majorities angry is that they know that they are the majority, but they feel that they are never in power. For them, the separation of power is a trick of the elites, a mechanism for confusion of responsibility. When people do not trust anybody, they want at least to know whom to blame. The current refugee crisis in Europe fueled all those sentiments.

Now, when we look back to the emergence of liberal democracy in post-1989 Central Europe, it is clear that it was the personal experience of the post-communist citizen of the unrestrained power exercised before 1989 and the desire to imitate the West that made people cherish institutions like the independent court and the independent media, but the new generation does not have this experience and it is also disappointed by the politics of permanent imitation of Western institutions and practices. For them any constrain on executive power is violation of the rights of the majority. What is more, the unrestrained power of the government returns the sense of restored sovereignty. The populist turn created the illusion that Central Europe will now be governed by politicians who are dependent on the wishes of their voters, good or bad, and not by the wishes of the market or Brussels. The paradox of the current populist turn is that in its liberal interpretation, the dismantling of independent institutions opens the road to unaccountable power, but in the eyes of many voters making the executive all-powerful is the only way to make it accountable to the voters.

In the atmosphere of total mistrust of the political class, the only way of keeping the loyalty of their supporters is for populist leaders to govern in a war-like fashion. So it is not surprising that speaking on a pro-government rally in Warsaw, Kaczyński called his critics “traitors” and compared them to collaborators with the Gestapo, the feared Nazi secret police responsible for the deaths of countless thousands of Poles. As no surprise comes the news that government has appointed as coordinator for the secret services the Polish version of “Dirty Harry,” a party loyalist previously sentenced for the abuse of power and just pardoned by the Law and Justice supporting president. Crossing the line, doing the unacceptable, breaking liberal taboos: these are actions through which populists gain legitimacy.

It is popular these days to explain the latest developments in Poland as a kind of anti-Solidarity counter-revolution. It is not true. Kaczyński’s Law and Justice party comes from the tradition of Solidarity, but not the optimistic and self-confident Solidarity of 1980, when 10 million people joined the trade union and citizens felt empowered. Rather, it was born out of the Solidarity experience of the mid-1980s, when the opposition had gone underground, most of its leaders were in prison, the majority of Poles retreated to their private lives, and frustration and fear of infiltration were running high. Law and Justice’s politics of radical suspicion have their roots in these paranoid times. So, it should not come as a surprise that for the new Polish government, nothing appears accidental. All of the government’s opponents are connected to each other, and EU politicians are conspiring to erode Poland’s sovereignty. In this state of mind, it is dangerous to trust anyone who is not part of the inner circle, and it is logical to try to concentrate all power in party hands, because independent institutions like the courts, media, or central bank, are not really independent—they are either controlled by us, or by our enemies.

So, does Kaczyński’s Poland herald “illiberal turn” in Europe, or is it simply a tragic accident? (History is populated by tragic accidents.) It is too early to judge, nevertheless, what should make Europeans worried is not so much the emergence of a dangerous populist government in European Union’s most successful new member, but the failure of the anti-populist rhetoric to protect liberal democracy in a moment of public frustration. Populist parties and populist sentiments were always present in Central Europe in the last 25 years, yet they never succeeded in becoming a dominant force, because populism was viewed as dangerous (the memories of 1930s), and because it was viewed as unfashionable, non-respectable. Voting for parties like PiS was a bad taste. It is not anymore. What is now out of fashion is voting for centrist mainstream parties.