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Tattoo artists do not need to be doctors. That is the gist of a Sept. 16, 2020 Supreme Court decision conclusively squelching an absurd prosecution based on the farcical proposition that they do. That such a prosecution was even brought — and contested all the way to the top court by prosecutors after already losing once on appeal — reveals a great deal about how courts and industry regulations interact.

People with tattoos are banned from Japan’s public baths and other spaces in no small part due to the association of ink with organized crime and marginal communities. It might thus seem tempting to see the case as an effort to combat yakuza by banning an art form they seem to like. In reality, though, it was probably just about industry regulation, or the lack thereof in the case of tattooing. Getting a tattoo is painful (I hear), but seeing a profession and sphere of commerce go unregulated seems to be a source of pain to some bureaucrats.

Taiki Masuda, a tattoo artist, was prosecuted for violating Article 17 of the Medical Practitioner’s Act, which says “[n]o person except a medical practitioner shall engage in medical practice.” Not being a licensed doctor, Masuda was convicted at his first trial in 2017, and sentenced to a fine. Remember, in Japan pretty much everyone is convicted if prosecutors go to the trouble of bringing charges.

On appeal, the Osaka High Court devoted 30 pages to overturning his conviction and rendering a rare acquittal on appeal. To do so it had to cover a lot of ground, including disposing of several constitutional challenges. On all of these it ruled in favor of the government. Getting a tattoo is a form of expressive behavior guaranteed by Article 21 of the Constitution, but that would not prevent the government from regulating it. Neither would Article 22, which guarantees the freedom to choose one’s profession. Article 31 requires due process before punishment, but the interpretation of the Medical Practitioner’s Act by the lower court did not render the law so vague as to be unconstitutional. Article 13 guarantees various freedoms but none specifically enough to matter.

Having established nothing constitutional prevented the government from regulating tattooing, the high court reversed Masuda’s conviction for a simpler reason: The lower court had got the law wrong. It had interpreted medical practice subject to licensing requirements as encompassing any activity that could endanger health unless performed by a person with medical knowledge and skills. The high court found, however, that in order to constitute medical practice an activity also had to involve administering “medical care” or “health guidance.” Since giving someone a tattoo was neither, the law did not apply.

It might seem obvious that as a voluntary alteration of a person’s appearance for aesthetic reasons, tattooing is not a medical procedure. But of course most cosmetic surgery is of the same character and definitely does need to be conducted by a doctor. Since the turn of the millennium health officials have been engaged in a regulatory battle against āto meiku — procedures marketed primarily to women and conducted at aesthetic salons. Examples include permanent eyebrow and eyeliner treatments, both of which involve injecting ink under the skin — tattoos. Businesses providing these services had also been subject to arrests and successful prosecutions for violating the Medical Practitioner’s Act. In this context the tattoo case may seem less outlandish, though the high court distinguished these precedents on the grounds that āto meiku fell within the scope of cosmetic surgery in a way that traditional tattoos did not.

Japan’s Supreme Court gets thousands of appeals every year, many citing constitutional violations — as they must, since the grounds on which appeals can be made are limited. Most are rejected with the judicial equivalent of a form letter commonly called a mikudari hanketsu (three line judgment), in which the court uses standard language to render a perfunctory rejection of the appellant’s constitutional claims as being merely assertions about mistakes concerning the law and thus not satisfying the requirements for an appeal.

The Supreme Court’s judgment in the tattoo case also starts out with this perfunctory formulation, which is interesting because remember, it is the prosecutors who appealed. I don’t have access to the pleadings, but it is hard for me to imagine what sort of constitutional violation could be asserted by prosecutors (or anyone) as resulting from a judgment of acquittal. This is particularly true given the high court seemed to have rejected all of Masuda’s constitutional arguments.

In any case, possibly because it was prosecutors, not just some citizen making the final appeal, after reciting its formulaic Spell of Rejection, the court took it upon itself to explain its rationale. This entailed a more concise restatement of the high court’s judgment and interpretation of the Medical Practice Act (helpfully underlined): Medical practice consists of those acts constituting medical care and health guidance which, if not performed by a doctor may cause damage to health. With that ruling, tattoos are safe, but probably only for a while.

A great deal of law in Japan (and probably elsewhere) consists of industry regulations administered by a ministry or agency as part of a regulatory fiefdom. Although prosecutors had to bring the case, the Medical Practice Act is the domain of the Ministry of Health, Labor and Welfare. Unsurprisingly and naturally, the prosecution’s arguments tracked the health ministry’s own interpretation of that law.

Within regulatory domains, a great deal of rule-making takes place in the form of interpretive decrees. The health ministry’s war on āto meiku started not with a change of law, but with a directive declaring the activities illegal under existing law. Vaguely-drafted laws like Article 17 of the Medical Practitioner’s Act give regulators vast discretionary powers to apply them or not, depending on what is convenient. For example, the Kake Gakuen scandal of the Shinzo Abe years arose in part because the ministry of education had for decades used its statutory authority to license veterinary schools to deny all applications to establish new ones, until a friend of the prime minister wanted to do so.

Engaging in a regulated business in Japan involves acceptance of whatever interpretation of the law the regulatory announces, whether through formal rule-making, interpretive decrees or even website FAQs. Courts almost never second guess a regulator’s interpretation of its own rules, so those subject to bad regulations often have little recourse. Those trying to survive within a regulatory system likely recognize it is suicidal to bring even a well-founded court claim against a primary regulator. Law schools, for example, teach constitutional law and administrative law, yet most seem to meekly submit to whatever demands the ministry of education makes regarding how they do so. Prime Minister Yoshihide Suga plans to combat Japan’s infamous vertically-integrated regulatory fiefdoms. But this probably just means greater centralized bureaucratic control rather than reinforcing the abilities and inclinations of the courts to keep bureaucratic powers in check.

While some health ministry directives on the meaning of the Medical Practitioner’s Act may make sense, others seem to prioritize regulatory fealty over letting people do things to stay alive. It wasn’t until 1981 that the ministry declared diabetics could administer their own insulin injections. In 2003 it conceded unlicensed caregivers could administer to those suffering from motor neuron disease the artificial suction they need to not die of asphyxia. Portable defibrillator devices are now fixtures in train stations and other public places in part thanks to a 2004 health ministry directive acknowledging that nondoctors may use them without breaking the law.

In addition to directives, regulators must rely on the occasional criminal charge, which are usually successful. The Osaka High Court judgment cites three earlier cases in which the Supreme Court had affirmed Medical Care Act convictions in situations as diverse as diet dojos and contact lens issues. Both the health ministry and the prosecutors may have thought the odds were on their side in the tattoo case.

The tattoo case can thus be seen as a rare example of Japan’s courts second-guessing a regulator as to the interpretation of its regulations. Even then, the court only did so in the context of a fairly obvious instance of regulatory overreach. Judges on both a high court and the Supreme Court were at pains to point out that regulation of tattoos was both possible and probably appropriate — just not through an expansive interpretation of existing law.

Thus, if I had to predict what comes next, it would be a law licensing and regulating tattoo artistry. Perhaps that will make the practice safer by ensuring practitioners satisfy minimum standards of skill and hygiene.

Then again, there is probably a reason why you never hear the phrase “regulated art form.” Regulation tends to squelch creativity in favor of uniformity, safety and predictability. Japan’s great cultural exports — manga, anime, video games — have all been in spheres largely untouched by regulation.

The judgment in the tattoo case is thus significant. But it will probably be what health regulators do in response that leaves a permanent mark.

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