Japanese tattoo artist Horiyoshi III tattoos a traditional design on the back of a customer at his studio in Yokohama, suburban Tokyo, 06 August 2004. Horiyoshi III, considered one of Japan's greatest living tattooists, gives a whole new meaning to the phrase "colourful character"
  AFP PHOTO/Toru Yamanaka (Photo credit should read TORU YAMANAKA/AFP/Getty Images)

An obscure clash involving a 28-year-old tattoo artist, the Osaka police and an ambiguous century-old medical law has spiralled into a landmark constitutional battle to save an entire industry from oblivion. 

The showdown in Japan follows the decision of the Osaka police to hit the local tattooing industry with the physicians’ law — a legal framework laid down in the 19th century that technically means only a qualified doctor can engage in “medical practices”. The courts have never tested whether tattooing numbers among those.

Deciding to test it for themselves, Osaka police swooped on dozens of tattoo artists in 2015. Everyone they netted paid a fine and either closed their shops entirely or moved to other cities in Japan where the authorities have yet to take the same hard line.

But Taiki Masuda, a 28-year-old whose arms are covered with characters from well-known horror films, decided to stand his ground and refused to pay the fine. The police, he argues, have massively over-reached their authority: they are ignoring the constitution, he says and are trying to turn a matter of taste into a criminal issue.

“I want people to see this as a social problem. There are many people who have no idea how to take action over an issue like this. I was one of them. I never imagined I would be involved in a group activity like this . . . this is not just about tattoos,” said Mr Masuda. 

A hearing on Friday in Osaka district court set an initial trial date for January 30. But the fight, which has already seen dozens of tattooists put out of business and could in theory see thousands more criminalised for continuing to do their jobs, is ultimately expected to reach Japan’s Supreme Court. 

As lawyers involved in Mr Masuda’s defence stress, the physicians’ law has never been used to prosecute tattoo artists. There was no mention of tattooing as a criminal act in the 1907 penal code and despite being identified as a “small misdemeanour” in the 1930s even that designation was abolished in 1948, says Kanako Takayama, a professor of criminal law at Kyoto University. 

Despite Japan’s longstanding distaste for tattoos among the general public, a growing national “Save Tattooing” campaign has drawn the unlikely support of university academics, criminal lawyers, journalists and thousands of young Japanese who wear tattoos as a fashion statement — a group that see the prosecution of tattoo artists a breach of four separate rights guaranteed by Japan’s constitution. 

Foremost among those, says Takeshi Mikami, the lawyer leading the campaign, concerns the constitutional guarantee of freedom of expression — a right that has been at the centre of several embittered, high-profile courtroom showdowns since Shinzo Abe became prime minister four years ago. 

The constitution, says Mr Mikami, also guarantees tattooists the freedom to choose an occupation, and the right of customers to the pursuit of happiness. The police action may also infringe on Article 31 that sets out the principle of no punishment without law. 

And the future of the industry is at stake if the Osaka courts side with the police. Prosecutors told Japanese media earlier this year that the physicians’ law applied to tattooists. “If the court decides that tattooing requires a medical licence, then none of the tattooists will be able to carry on tattooing . . . this trial has significant meaning, because it will decide whether the art of tattooing can continue in Japan,” says Mr Mikami. 

The tense legal saga comes as rising waves of tattooed foreign tourists, a domestic tattooing boom and the approach of the 2020 Tokyo Olympics are forcing Japan reconsider its traditional distaste for the art form. 

The historic association between tattoos and organised crime means that people who sport them are banned from swimming pools, hot springs and some beaches — a prohibition that many suspect will be impractical to enforce in the future. 

In 2012, the former mayor of Osaka sparked another legal wrangle when he insisted that 33,000 of the city’s civil servants be forced to declare whether or not they had tattoos and consider seeking employment in the private sector if they did.

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