Analysis of Law Enforcement Against Online Gambling

Crime

Fariedh Apriyadi M1, Mevitama Shindi Baringbing2

1
Faculty of Law, University of Lampung, Indonesia,
fariedh308@gmail.com
2
Faculty of Law, University of Lampung, Indonesia,
shindimevitama@gmail.com

The rapid development of information and technology in this era of globalization had a huge
impact on our community, especially for people in Indonesia. These developments have
various negative impacts, one of these is social problem called online gambling. Online
gambling could disrupt the social function of society. This research uses normative and
empirical juridical approaches with analytical research. Data of this research uses primary
legal sources with interview method, secondary legal sources such as literature of laws and
regulations, as well as books related to the subject of discussion. The results of research
concluded that law enforcement against online gambling crimes is started with the process of
making a law, followed by implementation stage by police’s investigation, prosecution by the
prosecutor, court trial, and execution of law enforcement by authority in the penitentiary.

Keywords: law enforcement, online gambling, crime.

A. Introduction

The rapid development of Information and Technology in this era of

globalization had a huge impact on our community, especially for people in
Indonesia. This information and technology development cause a social and
natural process that will bring all nations and countries in the world bound to
one another. But this process also bring the negative impact, one of them is
social problem called gambling. This problem is a form of social disease in
the community because it’s deviant act and it is clear that gambling is a
social problem that can interfere with the social function of society.1 It can
also disrupt public order, because basically it is against religious norms,
decency, and Pancasila morals. The truth is, gambling is a violation of social
culture in Indonesia.2

The basic of gambling in general is to make profit if you win a bet, the
bigger the bet, the greater the profit you could get. Gambling is betting on
purpose, risking a value or something that is considered valuable and aware
of the risks and certain expectations in these events, games, matches,
competitions, and events that do not or do not know the exact outcome.3

The crime of gambling or participating in gambling has been prohibited in

the criminal provisions of Article 303 of the Criminal Code (Book of the
Criminal Law) and based on the provisions stipulated in Article 2 paragraph
(4) of law number 7 of 1974 concerning controlling gambling, has changed
its designation to a criminal provision regulated in Article 303 of the
Criminal Code (Book of Criminal Law).4 The enforcement of criminal law
against gambling crimes had experienced the interesting dynamics: this
crime can be seen from the proliferation of types of gambling crimes,
mechanism or the variety of forms of gambling.

Online gambling in Indonesia is widely available for all circles in

community, both the upper class and even the lower classes, this crime is
widely available start from togel (toto gelap), cockfighting, casino, poker,
blackjack and sports betting such as in football, basketball, tennis and other
sports games. If the bet is correct, the perpetrator get a prize which is much
bigger than the wagered amount.
1
B. Simandjuntak, Pengantar Kriminologi dan Patologi Sosial, Bandung: Tarsito,
(1980), p. 354
2
Lanka Amar, Peranan Orang Tua Dalam Proses Persidangan Tindak Pidana
Perjudian Yang Dilakukan Oleh Anak, Bandung: CV. Mandar Maju, (2017), p. 1
3
Kartini Kartono, Patologi Sosial Jilid I, Jakarta: Rajawali, (1981), p. 58.
4
P.A.F. Lamintang, Delik-Delik Khusus Tindak Pidana-Tindak Pidana Melanggar
Norma-Norma Kesusilaan dan Norma-Norma Kepatutan, Bandung : CV Mandar
Maju, (1990), p. 28.
In regular gambling crimes, tools that used to commit the crime is dice or
cards, and the money used in this crime is enough to be used as evidence. In
the other hands, online gambling crimes only use a computer/mobile phone
and everything is done through internet. The bet is also paid not hand by
hand but transferring credit by credit card or ATM (automated teller
machine) transfer which can be done by internet as well.

The perpetrators can gamble anywhere and anytime because this crime
always operates 24 hours. Besides, the perpetrators also feel safe without
fear of being arrested by the authorities. This is a negative impact of the
development of information and technology which can be misused to rise
modern crime known as cybercrime.

Cybercrime is defined as illegal activities with computer intermediaries that

can be carried out through global electronic networks.5 Online gambling is
categorized as cybercrime because online gambling uses a
computer/smartphone and the internet as a medium to commit the crime.

In Indonesia, gambling is not a new thing because it is existed since long

time ago proven by the development of the type of gambling, named online
gambling. Nobody knows when this gambling game is started and known by
Indonesian people, but gambling is categorized as a very popular form of
game because it has entertainment, artistic value.6 Most of people is not
aware of the bad impact of this game, though gambling is addictive. It is
commonly starts from small bets to bets in large scale.

This research uses normative and empirical juridical approaches with

analytical research. Data of this research uses primary legal sources with
interview method, secondary legal sources such as literature of laws and
regulations, as well as books related to the subject of discussion. The author
is interested in doing this research because online gambling crime is one of
the social problems that have be resolved. For this reason, the authors are
interested to conduct a research entitled "Analysis of Law Enforcement
Against Online Gambling Crime."

5
Siswanto Sunarso, Hukum Informasi dan Transaksi Elektronik: Studi Kasus Prita
Mulyasari, Jakarta: Rineka Cipta, (2009), p. 40.
6
Sanyoto, Penegakan Hukum di Indonesia, Jurnal Dinamika, Vol. 8 No. 3, Sept
2008.
B. Discussion

1. Law Enforcement Against Online Gambling Crime

Law enforcement is the process to enforce the legal function norms as

guidelines for behavior of legal relations in social and state life. Law
enforcement is an ideas or concepts about justice, truth, and social benefits.
Law enforcement is force to make these ideas and/or concepts become
reality.7

Law enforcement is the whole activities by authority to organize and

maintain the balance of human rights and responsibility of their functions in
a fair and equitable manner with the rule of law, legal regulations and
legislation, Pancasila and the 1945 Constitution of the Republic of
Indonesia.8

It is emphasized in the UUD 1945 as a result of the amendment, that

Indonesia is a country based on law (rechtstaat), not based on power
(machtstaat) or night watchman state (nachtwachterstaat). The law
enforcement system is as a law enforcement system in the ground of
criminal law, includes material criminal law, formal criminal law and
criminal law enforcement.9

Criminal law enforcement is an application of values or ideas from

lawmakers who have gone through various processes and criminal law
enforcement as the implementation of criminal law politics, and have to go
through several policy stages, as follows:10

(a) Formulation Stage

The formulation stage is the stage of enforcing criminal law in abstracto by

the legislature.

7
Dellyana Shant, Konsep Penegakan Hukum, Yogyakarta: Liberti, (1998), p. 32.
8
Barda Nawawi Arief, Kumpulan Hasil Seminar Hukum Nasional I s.d. VIII dan
Konvensi Hukum Nasional 2008, Semarang: Pustaka Magister, (2009), p. 36.
9
Heni Siswanto. Rekonstruksi Sistem Penegakan Hukum Pidana Menghadapi
Kejahatan Perdagangan Orang. Semarang: Pustaka Magister, (2013), p. 77.
10
Roeslah Saleh, Pembinaan Cita Hukum dan Asas-Asas Hukum Nasional, Jakarta:
Karya Dunia Pikir, (1986), p. 15.
(b) Application Stage

The application stage is the stage of criminal law enforcement (the stage of
applying criminal law) by law enforcement officers from the Police to the
Court.

(c) Execution Stage

Execution stage is the stage where the law enforcement (implementation) is

carried out concretely by the authority. At this stage, the authority is ordered
to enforce statutory regulation that has been decided in a court decision.

The enforcement of criminal law has stages that need to follow, known as
first formulation, the stage of enforcing criminal law in abstracto by
legislators. The second stage is the application stage by law enforcement
officers from the Police to the Court. The last is execution stage where the
law enforcement (implementation) is carried out concretely by the authority.
At this stage, the authority is ordered to enforce statutory regulation that has
been decided in a court decision.11

At the formulation stage or in abstracto, the law-making body (legislative

policy) has been formulated in the form of legislation, named Law Number
11 of 2008 Information and Electronic Transactions (ITE) as amended by
Law Number 9 of 2016 concerning Amendments to Law Number 11 of 2008
concerning Information and Electronic Transactions (“Law 11/2008”)
Article 27 paragraph (2) reads: Everyone intentionally and without rights
distributes, transmits and/or makes access to Electronic Information or
Documents containing gambling content.

Threats to this violation are regulated in Article 45 paragraph (2) of Law

19/2016, reads: Any person who intentionally and without rights distributes
and/or intentionally and without rights transmits and/or makes accessible
Electronic Information and/or Electronic Documents who has a gambling
content as referred to in Article 27 paragraph (2) shall be sentenced to a
maximum imprisonment of 6 (six) years and/or a maximum fine of Rp. 1
Billion.

In accordance with the theory, law enforcement against online gambling

crimes committed by people in Indonesia, especially in Lampung Province is
in research. Law enforcement against online gambling crimes begins at the
formulation stage which has been formulated in Law Number 11 of 2008
concerning Information and Electronic Transactions, Article 27 paragraph 2

11
Budi Agus Riswandi, Aspek Hukum Internet Banking, Jakarta: PT Raja Grafindo
Persada, (2005), p. 83.
and the threat of violation is in Law Number 19 of 2016 Amendments to
Law Number 11 of 2008 concerning Information and Electronic
Transactions then enter the Application stage, called the law enforcement
stage starting with the police which focuses to prevent by conducting patrols,
named the Siber Patrol (Cyberpatrol) and providing educational socialization
regarding online gambling laws and regulations to the public, then repressive
action, called investigation, arrest and detention, followed by the prosecutor
carrying out prosecutions and in court judges who try and give decisions,
then the execution stage is the stage where the law enforcement
(implementation) is carried out concretely by the authority. At this stage, the
authority is ordered to enforce statutory regulation that has been decided in a
court decision.

2. Inhibiting Factors in Law Enforcement Against Online Gambling

Crimes

The factors that barrier law enforcement by Soerjono Soekanto’s theory

consist of the legal factors themselves, law enforcement factors, facilities
and infrastructure, community, and cultural factors.12 Based on the results of
interviews that the authors have conducted with law enforcers, the answers
about the inhibiting factors in law enforcement against online gambling
crimes are as follows:

(a) The Legal Factor itself

The practice of implementation of law enforcement is often caused a conflict

between legal certainty and justice. This is caused by the conception of
justice is an abstract ideas while legal certainty is a procedure that has been
determined normatively. Therefore, an action that is not fully based on the
law is something that can be justified as long as it does not conflict with the
law. The substance of the law is not something that is easy to plan, but the
substance of the law is also dependent on ground to be regulated.

According to Aslan Ainin, there is need a new regulation about evidence of

online gambling crimes because the judge who will be appointed to take this
case must have experienced in the ground of online gambling and have
deeper knowledge in the ground of information, communication and
technology. Judges are required to work more ideally, and judges are
required to be more thorough and critical of the evidence presented by the
prosecutor because electronic evidence and documents are prone to be
manipulated or changed by irresponsible persons.

12
Soerjono Soekanto, Faktor-Faktor Yang Mempengaruhi Penegakan Hukum,
Jakarta: Raja Grafindo Persada, (2004), p. 42.
Therefore, a new regulation is needed because the electronic evidence and
documents are not explained in detail and unequivocally. According to Aslan
Ainin, the Supreme Court needs to issue new legal products regarding
evidence from electronic evidence and documents which are commonly
called Perma (Supreme Court Regulations) but it is also necessary to know
not to let the legal products themselves reduce the freedom of judges in
examining and deciding on those cases.

Based on an interview with Aslan Ainin, the author also believes that the
inhibiting factors of the act have been found, which means that in the
substance of Law Number 11 of 2008 concerning Information and Electronic
Transactions (ITE):

(1) The law has severe criminal sanctions but in its application it is still not
optimal.

(2) The explanation is still on its standard content that has not been
explained in detail about the interpretation of electronic
documents/evidence so we do not know who has the right assess to the
standard.

In the author's opinion, the law factor is a fundamental problem in the law
enforcement process against online gambling crimes because specifically in
Law Number 11 of 2008 abut Electronic Information and Transactions (ITE)
there are weaknesses, there is no explanation of what is meant with
“electronic documents/evidence”. Electronic documents/evidence in the
standard of view of how it can be interpreted. Everyone have a difference in
defining the meaning of the word electronic document/evidence in the
absence of an explanation of electronic document/evidence.

According to Erna Dewi, the inhibiting factor is that law enforcement

officers themselves. They should have skills that are trained, professional in
their respective fields and have more values, also honesty, integrity and fair,
also dare to take action against anyone who is wrong for law enforcement in
Indonesia. Therefore, this law enforcement factor is a major homework for
the Indonesian State which must be addressed immediately.

According to Ramdan, other factors that barrier law enforcement against

online gambling crime there is still a lack of quantity of police investigator
personnel in cybercrime cases and there is a need to conduct training for
them in cybercrime cases in Lampung Province. This training is to pursue
each police personnel had capabilities to against cybercrime cases. There is a
necessary need to establish a new unit of cybercrime in every sector in police
department in Lampung Province in order to achieve law enforcement in the
grounds of electronic and transaction information (ITE).
According to the author, the training it is not only for the police but also for
other law enforcement officers, such as prosecutors and judges so they have
knowledge, expertise and competence in the ground of cybercrime law
enforcement. With this expertise, it is hoped that law enforcement officers
can uncover modern crime cases that use technology and information as
facilities.

According to the author, the attention police as law enforcers, in particular,

only focuses on conventional crimes that grab a lot of public attention, such
as robbery, rape, theft, etc. On the other hand the lack of response from
investigators dealing with gambling crime, that’s just because this crime is
categorized as a minor crime and there is no report to the police. Another
weakness is the limited number of special officers/units that handle online
gambling crimes at each police department in Lampung Province, and also
the long and unresponsive procedure in handling online gambling crime
cases.

In addition, supporting facilities include skilled educated human resources,

good organization, adequate equipment, adequate finances. Without
adequate facilities, law enforcement cannot run smoothly and law
enforcement is unlikely to be able to carry out its role as it should.

Based on the description above, it can be stated that complete and adequate
facilities and infrastructure are needed in the process of investigating online
gambling crimes. If the facilities and infrastructure is not complete and
adequate, the investigation process can be hampered, the lack of support for
these facilities and infrastructure will have an impact on the difficulty for the
crime to be proven.

Based on Ramdan's statement there is low budget for law enforcement

against these crimes. On the other hands, to conduct an investigations against
online gambling crime will cost a high budget to fee the expert to explain
electronic evidence in the application of the ITE Law. To handle this factor,
one thing that already done is by submitting a request for additional budget
to the Lampung Regional Police. However, there is still no budget to support
online gambling investigations. In addition, online gambling cases is need
more sophisticated equipment. The lack of complete operational support
infrastructure greatly barrier the investigation process. The Police
Department should update and upgrade their infrastructure so online
gambling cases can be resolved optimally.

Based on the reality on the ground, the authors argue that the factors that
barriers law enforcement against online gambling crimes is the high costs
that must be incurred to carry out investigation as well as counseling
activities by law enforcement officers at universities and also public
information about the dangers and impacts negative of online gambling
crimes.

According to Ramdan, a personnel of the Lampung Regional Police

cybercrime, sometimes the community know that there is someone who is
indicated to be doing online gambling activities and even knows the places
where this game os done, but the community in this case is passive and does
not want to report them.

No less important than other factors, the legal culture of this community also
has an influence and plays an important role in the law enforcement process
against gambling crimes. The pluralism of legal culture in society is a unique
phenomenon and contains potential risks, and it is often places law
enforcement officers into a dilemmatic condition, which in turn can lead to
ambivalence in carrying out their actual roles.

Community factors are the most important part in determining law

enforcement is the legal awareness of the community.

The higher the legal awareness of the community, the more it will be
possible for the good law enforcement. On the other hand, the lower the
level of public legal awareness, the more difficult it will be to implement
good law enforcement. According to Satipjo Raharjo, social control is a
process to influence people to behave manner with the expectations of
society. Social control is carried out by moving various activities that
involve the use of state power as an institution that is organized politically,
through political institutions which it formed.

The community also influences the enforcement of criminal law in

Indonesia. The community need to be aware of the law and maintain morals
and believing that online gambling crime is an act that is sinful in every
religion and violates the law as regulated in Article 27 paragraph (2) Law
Number 11 of 2008 concerning Information and Electronic Transactions
(UU ITE) as amended by Law Number 19 of 2016 concerning Amendments
to Law Number 11 of 2008 concerning Information and Electronic
Transactions ("Law 19/ 2016”).

The community is expected to have concern and courage to report ongoing

online gambling crimes because this crime will harm the perpetrators, their
families, and the community itself. It is hoped that the community will be
more supportive to support the investigation process. The more active
community support, the more optimal law enforcement efforts will be. By
doing this, it is hoped that online gambling perpetrators can be deterred and
afraid to do it again. Basically the purpose of the law can be implemented
properly with the help of the community to reduce numbers or even
eradicating online gambling crimes in Indonesia, especially in Lampung
Province.

C. Conclusion

Based on the results of the research, the conclusions in this study are as
follows:

(1) Law enforcement against online gambling crimes begins at the

formulation stage which has been formulated in Law Number 11 of 2008
concerning Information and Electronic Transactions, Article 27
paragraph 2 and the threat of violation is in Law Number 19 of 2016
Amendments to Law- Law Number 11 of 2008 concerning Information
and Electronic Transactions. The second is the application stage, which
is called law enforcement starting by the police personnel which focuses
to prevent online gambling crimes by conduct the Cyberpatrol and
provide socialization to community about online gambling laws and
regulations. The repressive act of police is to conduct investigation,
arrest and detention, followed by the prosecution and the court of justice
which hears and gives a decision. The third is execution stage, which is
implementation that carried out concretely by the authority in
penitentiary. At this stage, the authority is ordered to enforce statutory
regulation that has been decided in a court decision.

(2) The barrier of law enforcement against online gambling crimes has
several factors, including the law factor itself, the online gambling crime
law has severe criminal sanctions but in its application it is not optimal
and the need for law regarding evidence in court. The second is the
weaknesses of law enforcement officers which only focuses on
conventional criminal acts and the limited number of law enforcement
officers, such as special unit that handle cases of online gambling
crimes. The three is facilities and infrastructure required to conduct
investigation process is inadequate and caused law enforcement to not
work properly. The four is community factors which is the most
important part in determining law enforcement itself, the community is
consider gambling a normal thing. The last is the culture of the
community itself, some of them is make a living by robbing, corruption
and gambling to get glamorous life opportunity in their surroundings. It
was something that is difficult to change because this culture has been
passed down from generation to generation.
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