Commentary on Sections Composition for Proceedings Section 43: Changes in Composition
171.This section provides for flexibility in the event of the Court being reduced in number (for example due to death or illness) before the end of proceedings.
172.Subsection (1) provides for this section to apply if the Court ceases to be duly constituted "because one or more members of the Court are unable to continue". In such a case, subject to any directions which the President may give (subsection (4)), the presiding judge (defined in subsection (6) as the judge who is to preside over the proceedings, or is presiding if they have already commenced) may direct that the Court is still duly constituted (subsection (2)), but only if the parties agree, the Court still consists of at least three judges, and at least half of those judges are permanent judges. So the Court may continue with an even number of judges; and if it does, and the judges divide evenly in their decisions, the case must (subsection (5)) be re-argued before a Court constituted in accordance with section 42 .
173.Because the section applies (by virtue of section 42(6)) to any proceedings from the time that judges are designated to hear proceedings (rather than when the proceedings commence), the Court is (for example) enabled to start the hearing with four judges where five were designated but one is unable to continue, as long as at least two of the four are permanent judges. The provision in subsection (1), that the section applies to a court constituted in accordance with a direction 'under this section', is to allow for the possibility of two judges falling out of a panel which started off with at least five. This might occur if, for example, a panel of five is designated, and before the hearing commences, one judge is unable to continue, and the presiding judge directs (the parties being in agreement and there still being four judges of whom at least two are permanent) that the Court is still duly constituted; and then another judge is unable to continue, leaving three, of whom two are permanent, and the parties are still in agreement that the proceedings should continue. Then there would be a Court which ceases to be duly constituted "in accordance with this section", but the presiding judge may direct that it is still duly constituted.