In 1748, Montesquieu came up with a theory that we now take for granted. Judges are independent but they do not make laws, they apply them – and they do not govern. Parliament makes laws but does not apply them and does not govern. Governments govern.

The separation of the legislative, judiciary and executive powers is not always clear cut. As they interact, tensions may arise between them, but a system of checks and balances helps solve problems, not least because the three powers operate in the same society.

Checks and balances have obviously not worked in the Council of Europe, where the European Court of Human Rights has been allowed to arrogate to itself increasing powers.

The current situation was described by British Prime Minister David Cameron in a speech in Strasbourg on January 25, 2012, during the British chairmanship. He said: “The focus of our chairmanship is our joint effort to reform the European Court of Human Rights. We need to work together to ensure that the court remains true to its original intention: to uphold the Convention and prevent the abuse of human rights.

“The time is right to ask some serious questions about how the court is working.”

Cameron argued “that not enough account is being taken of democratic decisions by national parliaments” and that “decisions made at a national level should be treated with respect” by Strasbourg.

Specifically on asylum and immigration cases, he recalled that all 47 Council of Europe member states had “collectively invited the court to avoid intervening except in the most exceptional circumstances”. He added: “All states agreed that the court was, in some cases, too ready to substitute its judgment for that of reasonable national processes, and all agreed that that was not its role. In other words, it should not see itself as an immigration tribunal.”

The Strasbourg court obviously ignored Cameron’s warning in the Suso Musa and Aden Ahmed cases of July 23, 2013. It decided against Malta on matters that had never come before the Maltese courts which, rather than treating with respect, it consigned to the category of decorative paraphernalia.

Acting in defiance of Article 35 of the European Convention of Human Rights – which says that it “may only deal with the matter after all domestic remedies have been exhausted” – it justified its interference by citing its case-law.

When the Strasbourg court cites its own case-law it means that, having stretched, squeez­ed, bent and twisted the Convention in the past, it can do so again in present and future cases. It does not seem to understand that no amount of case-law gives it the power to amend the Convention over the heads of governments.

Having taken the power to make laws, the Strasbourg court also tries to govern by giving general policy ‘recommendations’ to governments.

The Maltese Parliament – Government and Opposition combined – has decided on a policy of detention of illegal immigrants which is justified by Malta’s geographical, demographic and economic circumstances. In the Aden Ahmed judgment, the court came close to saying that it does not care about this: “The court is well aware that the states which form the external borders of the EU are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum seekers.

The concept of human rights is being distorted- David Cameron

“The court is particularly aware of the disproportionate number of asylum seekers when compared to the capacities of some of these states. However, that cannot absolve a state of its obligations under [Article 3 of the Convention].”

Does it mean that the Finance Minister should put the welfare of refugees and illegal immigrants as his budget’s top priority?

In the Suso Musa case it goes much further. It first pays lip service to the principle that “it is not for the court to determine what may be the appropriate measures of redress for a respondent state to perform”. It then proceeds to do exactly that. It indicates “the general measures required”, which would include limiting the detention periods and improving the detention conditions.

Everybody favours improving everything under the sun, but a court is meant to decide on the particular case before it and not to lay down general policy. Once the Strasbourg court decided to pontificate on policy, is it too much to ask it first to undertake an economic, environmental and security impact assessment?

Such biased and warped reasoning by the court can give some lawyers the expectation that they can win all asylum and immigration cases they take to Strasbourg.

The lawyer representing Suso Musa was quoted by Times of Malta (See ‘Malta breached human rights of two immigrants’, July 24, 2013) as saying: “Illegal detention is just not on and, if necessary, we will bring case after case until the system is overhauled”.

I wonder who gave him the assurance that in future he will win “case after case” before the Strasbourg court?

In his Strasbourg speech, Cameron added: “The concept of human rights is being distorted. When controversial rulings overshadow the good and patient long-term work that has been done, it has a corrosive effect on people’s support for human rights.

“The court cannot afford to lose the confidence of the people of Europe and [it] should not undermine its own reputation by going over national decisions where it does not need to. And we are hoping to get consensus on strengthening subsidiarity, the principle that where possible final decisions should be made nationally.”

The Maltese people’s support for human rights will inevitably be corroded if the term is limited to the rights of refugees and illegal immigrants to the exclusion of the wrongs suffered by women, children, people suffering from some disability, people with a minority sexual orientation, old people and other categories.

Come to think of it, at least half the Maltese people can claim that their enjoyment of human rights could be improved. That should be quite an agenda, even if for many of these categories, no EU funds are available for self-styled human rights defenders.

Correction: The pull quote in last week’s article by Michael O’Boyle entitled ‘Unjustified attack on ECHR’ was taken from another article. This was due to a technical error, which is regretted.

Joseph Licari was Malta’s Ambassador to the Council of Europe (1999-2013).