Introduction

In the Philippines, the National Bureau of Investigation (NBI) Clearance is a vital document for various purposes, including employment, travel, business transactions, and government requirements. It serves as proof of an individual's criminal record or lack thereof, based on the NBI's database and records from other law enforcement agencies. A common question arises: can an individual obtain an NBI Clearance if they have a pending criminal case? This article explores the legal framework, procedures, implications, and practical considerations surrounding this issue, providing a comprehensive overview within the Philippine legal context.

Understanding NBI Clearance

The NBI Clearance, officially known as the NBI Clearance Certificate, is issued by the National Bureau of Investigation, an agency under the Department of Justice (DOJ). Established under Republic Act No. 157 (1947) and further strengthened by subsequent laws like Republic Act No. 10867 (2016), which modernized the NBI, the clearance certifies whether a person has any derogatory records, such as criminal convictions, pending cases, or ongoing investigations.

The clearance is not a mere formality; it is a tool for background verification. It draws from multiple sources, including:

NBI's own investigative records.
Philippine National Police (PNP) crime databases.
Court records from the judiciary, including the Supreme Court, Court of Appeals, and lower courts.
Prosecutor’s offices under the DOJ.
Other government agencies like the Bureau of Immigration (BI) for related matters.

The document typically states "No Criminal Record" if the check yields negative results. However, if issues are found, it may include annotations such as "With Derogatory Record" or specific notations about hits in the system.

The Application Process for NBI Clearance

To apply for an NBI Clearance, individuals must follow these steps:

Online Registration: Applicants register via the NBI Clearance Online System (clearance.nbi.gov.ph) and schedule an appointment.
Payment: A fee is paid, typically around PHP 130 for local purposes or higher for multi-purpose clearances (e.g., for visa or overseas work).
Biometrics and Photo Capture: At the NBI office or authorized center, fingerprints, photos, and signatures are taken.
Database Check: The NBI cross-references the applicant's details against national databases.
Issuance: If no issues, the clearance is printed and released. Processing time can range from immediate issuance to several days.

The system uses the Automated Fingerprint Identification System (AFIS) and the NBI's Integrated Ballistics Identification System (IBIS) for accuracy, ensuring matches are based on biometrics rather than just names to avoid errors from common names.

Impact of a Pending Criminal Case on NBI Clearance

A pending criminal case refers to any ongoing legal proceeding where charges have been filed in court but no final judgment has been rendered. This includes cases at the preliminary investigation stage with the prosecutor's office, in trial before a Regional Trial Court (RTC), Metropolitan Trial Court (MeTC), or other tribunals, or on appeal.

Can You Still Obtain the Clearance?

Yes, individuals with pending criminal cases can apply for and receive an NBI Clearance. The NBI does not outright deny the application based on a pending case. However, the clearance will not be "clean." Instead, it will bear a "HIT" notation, indicating a match in the derogatory records database. This HIT could specify:

"With Pending Case" followed by details like the case number, court, and nature of the offense.
"For Verification" if the record needs further confirmation.

The legal basis for this is rooted in the NBI's mandate to provide accurate information. Under DOJ Circular No. 41 (2000) and related issuances, the NBI is required to disclose any pending matters to ensure transparency. Denying the clearance entirely would contradict the purpose of the document, which is to inform rather than to punish.

Types of Pending Cases and Their Effects

Criminal Cases: Serious offenses like theft, estafa, drug-related crimes, or violence will almost always trigger a HIT. Even minor cases, such as alarms and scandals or slight physical injuries, may appear if formally filed.
Administrative Cases: These (e.g., before the Civil Service Commission or Ombudsman) may not always appear, as they are not strictly criminal, but if they involve moral turpitude, they could be noted.
Civil Cases: Purely civil matters (e.g., debt collection) do not typically affect NBI Clearance, as it focuses on criminal records.
Warrants of Arrest: If a pending case has an outstanding warrant, this will be prominently noted, potentially leading to arrest during application if the individual appears in person.

For cases under the Katarungang Pambarangay (Barangay Justice System) or those resolved amicably before formal filing, they usually do not appear unless escalated to court.

Exceptions and Special Circumstances

Dismissed or Archived Cases: If a case was dismissed (e.g., via a Motion to Quash or Demurrer to Evidence) or archived, it should not trigger a HIT. Applicants can submit court certifications to update NBI records.
Acquittals: A final acquittal removes the record from derogatory status.
Amnesty or Pardon: Presidential pardons or amnesties (e.g., under Proclamation No. 572 for CPP-NPA members) can clear records.
Juvenile Cases: Under Republic Act No. 9344 (Juvenile Justice and Welfare Act), records of children in conflict with the law are confidential and should not appear on adult clearances.
Sealed Records: Certain cases, like those under Republic Act No. 9262 (Violence Against Women and Children), may have sealed elements, but criminal aspects could still show.

In rare instances, if the pending case is not yet entered into the national database (e.g., due to delays in court reporting), the clearance might issue without a HIT. However, this is not reliable, as databases are updated regularly.

Legal Implications and Practical Consequences

Obtaining an NBI Clearance with a HIT has several implications:

Employment: Many employers, especially in government (under Civil Service rules) or private sectors, require a "No Criminal Record" clearance. A HIT may lead to disqualification or further scrutiny.
Overseas Travel and Work: For Overseas Filipino Workers (OFWs), the Philippine Overseas Employment Administration (POEA) or Department of Migrant Workers (DMW) may reject applications. Visa processes for countries like the US or Canada often require clean records.
Firearms Licensing: Under Republic Act No. 10591, a pending case disqualifies applicants for firearm permits.
Professional Licensing: Boards like the Professional Regulation Commission (PRC) for lawyers, doctors, etc., may deny licenses or renewals.
Government Transactions: Requirements for bidding, loans, or clearances from other agencies (e.g., PNP Police Clearance) may be affected.

Legally, presenting a clearance with a HIT without disclosure could be seen as misrepresentation, potentially leading to charges under Article 172 of the Revised Penal Code (Falsification by Private Individual).

Remedies and Alternatives

If a pending case causes a HIT, applicants have options:

Resolve the Case: Seek dismissal, acquittal, or settlement. Once resolved favorably, request NBI to update records via a "Clearance Update" application, submitting court documents.
Court Certification: Obtain a Certification of No Pending Case from the court handling the matter, though this is limited to that specific court and not a substitute for NBI Clearance.
PNP Police Clearance: As an alternative, this may be issued without HIT for local purposes if the case is not in PNP records, but it's less comprehensive.
Appeal to NBI: If the HIT is erroneous (e.g., due to name similarity), file a request for reconsideration with supporting documents.
Legal Assistance: Consult a lawyer or the Public Attorney's Office (PAO) for free if indigent, to expedite case resolution.

Under the Data Privacy Act (Republic Act No. 10173), individuals can request access to their records and corrections if inaccurate.

Challenges and Reforms

The system faces issues like database backlogs, leading to delays or errors. The COVID-19 pandemic exacerbated this, with online applications helping but not eliminating queues. Recent reforms under Republic Act No. 11235 (Motorcycle Crime Prevention Act) and digital initiatives aim to integrate databases better via the National Justice Information System (NJIS).

Critics argue that pending cases should not automatically tarnish clearances, as they violate the presumption of innocence under Article III, Section 14 of the 1987 Constitution. However, the clearance's purpose is informational, not adjudicatory.

Conclusion

In summary, yes, you can obtain an NBI Clearance with a pending criminal case in the Philippines, but it will include a HIT notation that discloses the issue, potentially limiting its utility. The key is understanding that the clearance reflects current records, emphasizing the importance of resolving legal matters promptly. For anyone facing this situation, proactive steps like case resolution and record updates are essential to secure a clean clearance. This ensures compliance with Philippine laws while facilitating personal and professional opportunities.